Clifford Chance C19 Job Retention Scheme Guidance and Updates

April 21st, 2020

20th April

Details of what employers need to make a claim have been moved from the CJRS Guidance to www.gov.uk/guidance/claim-for-wages-through-the-coronavirus-job-retention-scheme

  • The CJRS Guidance now contains (taking into account 17th/20th changes):New information added on scheme extension, fraud, claims for employees made redundant or who stopped working, fixed term contracts, agency workers and retaining records.

This was amended today to tinker with the wording on holiday pay, to refer to “usual holiday pay” rather than 100% usual pay and to remove the reference to topping up 20% and replace it with “additional amounts” – see attached compare.

16th April

1. The CJRS Guidance has been updated again. The main changes are as follows:

  • The key payroll eligibility date has been changed from 28 February to 19 March. Thisaddresses new starters and removes need for old employers to re-engage though not sure how much of that was occurring in practice?
  • The salary reference date for calculating the claim for salaried employees has also changed to 19th March 2020. The revised guidance states that if, based on previous guidance, an employer has calculated their claim based on the employee’s salary as at 28 February 2020 (and this differs from their salary in their last pay period prior to 19 March 2020), the employer can choose to still use this calculation for their first claim.
  • Further guidance re furloughing employees that were made redundant after 28 February and the documentation required to support the claim for them.
  • Some additional detail on the documentation firms will need to provide when making their claim. Employers with 100< employees have a different data input process to larger employers
  • Employees on unpaid leave the guidance now provides that if an employee started unpaid leave after 28 February 2020, they can be furloughed. If however an employee went on unpaid leave on or before 28 February, they cannot be furloughed until the date on which it was agreed they would return from unpaid leave.

2. The Chancellor has made a Treasury Direction see: (https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/879484/200414_CJRS_DIRECTION_-_33_FINAL_Signed.pdf) in relation to the Coronavirus Job Retention Scheme setting out some of the parameters/mechanics. The substance of this is clearly the driver of the latest CJRS update

Some key points:

  • Purpose of the Scheme: inter alia states:

2.4        Before making payment of a CJRS claim, HMRC must, by publicly available guidance, other publication generally available to the public, or such other means considered appropriate by HMRC, inform a person making a CJRS claim that, by making the claim, the person making the claim accepts that- (a) a payment made pursuant to such claim is made only for the purpose of CJRS (and in particular as provided by paragraph 2.2), and (

b) the payment must be returned to HMRC immediately upon the person making the CJRS claim becoming unwilling or unable use the payment for the purpose of CJRS.

2.5       No CJRS claim may be made in respect of an employee if it is abusive or is otherwise contrary to the exceptional purpose of CJRS

  • Qualifying employers

Aligning with the updated CJRS guidance it clarifies that an employer may make a claim for a payment under CJRS if it has a PAYE registered on HMRC’s real time information system for PAYE on 19 March 2020

  • Qualifying costs are dealt with at paras 5, 7.1-7.5
  • Salary/bonus paras 7.1-7.5 to calculate the employee’s reference salary, no account is to be taken of anything which is not regular salary or wages.

7.4 expands on what “regular” means in relation to salary or wages and it is possible that in some circumstances a contractual bonus might be included (but this need to be worked through and checked with Sonia’s team)

7.4 In paragraph 7.3 “regular” in relation to salary or wages means so much of the amount of the salary or wages as-

(a) cannot vary according to any of the relevant matters described in paragraph 7.5 except where the variation in the amount arises as described in paragraph 7.4(d),

(b) is not conditional on any matter,

(c) is not a benefit of any other kind, and

(d) arises from a legally enforceable agreement, understanding, scheme, transaction or series of transactions.

7.5 The relevant matters are- (a) the performance of or any part of any business of the employer or any business of a person connected with the employer, (b) the contribution made by the employee to the performance of, or any part of any business, (c) the performance by the employee of any duties of the employment, and (d) any similar considerations or otherwise payable at the discretion of the employer or any other person (such as a gratuity)

  • Furloughed employees

6.1 provides that An employee is a furloughed employee if- (a) the employee has been instructed by the employer to cease all work in relation to their employment, (b) the period for which the employee has ceased (or will have ceased) all work for the employer is 21 calendar days or more, and (c) the instruction is given by reason of circumstances arising as a result of coronavirus or coronavirus disease.

  • Note that it goes on to provide that An employee has been instructed by the employer to cease all work in relation to their employment only if the employer and employee have agreed in writing (which may be in an electronic form such as an email) that the employee will cease all work in relation to their employment.
  • Query whether an implicit consent route will satisfy this (i.e. the ee is deemed to consent to furlough and variation of their contract if no objection to the contrary is received by a specified date)
  • Directors: para 6.6  provides that work undertaken by a director of a company to fulfil a duty or other obligation arising by or under an Act of Parliament relating to the filing of company accounts or provision of other information relating to the administration of the director’s company is to be disregarded for the purposes of the instruction to cease to perform work
  • New Sabbaticals para6.5 No claim to CJRS may be made in respect of an unpaid sabbatical or other period of unpaid leave of an employee beginning before or after 19 March 2020 (whether agreed or otherwise arranged conditionally or unconditionally on, before or after that day).
  • Expenditure to be reimbursed – see 8.1 onwards
  • SMP/SSP and other statutory benefits cannot be claimed: 8.6 No claim under CJRS may include amounts of specified benefits payable or liable to be payable in respect of an employee (specified benefits include SMP/SSP/SPLP/SAP etc)
  • Paras 8.8 -8.10 address pension contribution recovery
  • Duration of CJRS:  3 months ending 31 May 2020 – CJRS has effect only in relation to amounts of earnings paid or payable by employers to furloughed employees in respect of the period beginning on 1 March 2020 and ending on 31 May 2020 and employer national insurance contributions and directed pension payments paid or payable in relation to such earnings.

Both the updated CJRS Guidance and the Treasury Direction are silent on holiday pay.  We still hope for further guidance in this area.