21 April 2020

There has been some further activity with regards to the Coronavirus Job Retention Scheme (CJRS) and the statutory sick pay regime, since our last update.

• The portal allowing employers to reclaim up to 80% of a furloughed employee’s salary from HMRC opened at 5.30am yesterday (Monday 20 April). It can be accessed through the Government Gateway.
• The Chancellor of the Exchequer announced on Friday 17 April that that CJRS is to be extended until the end of June. This followed concerns that if the scheme closed on 31 May 2020, as originally intended, employers would need to start the 45 day consultation period on 18 April 2020 in respect of any collective redundancies that would ensue.
• HMRC has now provided some clarity on the vexed issue of taking annual leave while on furlough by updating the Employees' Guidance. At the point of writing, the Employer's Guidance has not been updated. The Employee's Guidance now states that it is possible to take annual leave while on furlough, with the employer having to 'top up' to 100% of normal pay. The updated guidance is however silent on whether an employer can compel an employee to take annual leave while on furlough, thus depleting their holiday entitlement at the government's expense.
• HMRC has updated its statutory payments manual to provide that employees do not qualify for SSP if they are on furlough.
• The government made the Statutory Sick Pay (General) (Coronavirus Amendment) (No. 3) Regulations 2020. The Regulations provide that a person is deemed to be incapable of work if they are unable to work because they fall within the extremely vulnerable category and have been advised to shield. The Regulations came into force on Thursday 16 April.

HMRC has published two new guidance documents:

• The first is a ‘step by step’ guide for employers on how to claim under the CJRS, setting out the information that employers will need to provide and the processes they will need to follow.
• The other is a guide to calculating 80% of an employee’s wages for the purpose of claiming under the CJRS. This includes guidance on which payments can be taken into account (e.g. ‘regular wages’, non-discretionary overtime, non-discretionary commission payments) and which cannot (e.g. tips, discretionary bonuses, discretionary commission payments, non-monetary benefits).

Do not hesitate to get in contact with the employment law team if you have any queries arising from the foregoing.

Employment law

Caroline Carr, Partner: E: cac@bto.co.uk / T: 0141 225 5263
Laura Salmond, Partner: E: lis@bto.co.uk / T: 0141 225 5313
Douglas Strang, Senior Associate: E: dst@bto.co.uk / T: 0141 225 5271