FLEXIBLE FURLOUGH -THE CORONAVIRUS JOB RETENTION SCHEME (CIRS)


Up to 1st July, furloughed employees had to stop all work for a minimum of 3 weeks as a condition for employers claiming their furloughed wages under the CJRS. Since 1st July, employees are allowed to carry out some work whilst on furlough, with employers paying their employees for any reduced hours worked at their normal rate of pay, whilst claiming for the remaining unworked hours that the employee would normally be expected to work via the CJRS at the furloughed rate.


For claim periods from 1 July 2020, employers are required to submit details of the usual hours an employee would be expected to work in a CJRS claim period (based on the number of hours the employee was contracted for at the end of the last pay period ending on or before 19 March 2020) and the actual hours worked, or hours which will be worked, to HMRC. From 1 July 2020, when claiming the CJRS grant for furloughed (unworked) hours, employers will need to report and claim for a minimum period of a week. From 1 July 2020, claim periods will no longer be able to overlap months. Also, from this date, the number of employees an employer can claim for in any claim period cannot exceed the maximum number they have claimed for under any previous claim under the current CJRS rules. Employers will be able to make their first claim under the new CJRS scheme from 1 July 2020.


From 1 July, agreed flexible furlough agreements can last any amount of time. This means that they do not need to last for a minimum of 3 weeks. Unless employees are currently employed on casual hours or zero-hours contracts rather than fixed-hour contracts of employment (i.e. they have already agreed to work flexibly), or their contract contains a contractual ‘short-time working’ clause, a requirement to work different, reduced hours of work under a flexible furlough agreement will be a variation of contract for which the employee’s agreement will be required to reduce the risk of a breach of contract claim or claim for unlawful deduction from wages. Government guidance also states that to be eligible for the CJRS grant, employers must agree with their employee any new flexible furloughing arrangement and confirm that agreement in writing. Employers must keep a written record of the agreement for five years.

Please refer to the below HMRC “example of how to calculate the amount you should claim for an employee who is flexibly furloughed”:


https://www.gov.uk/government/publications/find-examples-to-help-you-work-out-80-of-your-employees-wages/example-of-a-full-calculation-for-an-employee-who-is-flexibly-furloughed

Please also refer to the below HMRC “example of how to calculate your employees’ wages, national insurance contributions and pension contributions” for claim periods from July:

https://www.gov.uk/government/publications/find-examples-to-help-you-work-out-80-of-your-employees-wages/examples-of-how-to-work-out-80-of-your-employees-wages-national-insurance-contributions-and-pension-contributions

The above publication also sets out how the tapering to the CJRS applies from August, September, and October.


HMRC published the following new guidance document on 12 June 2020 in relation to calculating claims under the new Flexible Furlough scheme from 1 July 2020, which sets out how to determine the length of your claim period, what to include when calculating wages and how to work out your employees’ usual and furloughed hours:

https://www.gov.uk/guidance/steps-to-take-before-calculating-your-claim-using-the-coronavirus-job-retention-scheme

HMRC has also updated the following guidance document for claiming unworked hours under the Flexible Furlough scheme from 1 July 2020:

https://www.gov.uk/guidance/calculate-how-much-you-can-claim-using-the-coronavirus-job-retention-scheme


What if employees refuse to work flexibly under the Flexible Furlough Scheme?

As set out above, a requirement to work reduced hours under the flexible furlough scheme for employees with fixed contractual hours will be a temporary variation of contract for which the employee’s agreement is required, unless the employer is able to rely on an existing contractual short-time working clause and has given reasonable notice to return to work on reduced hours under this clause.


Employees may not agree to the new temporary hours of work where agreement is required, in which case the employer should consult with those employees to establish the reasons for the employees’ refusal. Employers should address any difficulties or concerns employees may have in returning to work on varied hours or shift patterns under flexible furlough, such as childcare (which may give rise to the risk of an indirect sex discrimination claim where female staff has childcare difficulties), or concerns regarding the requirement to use public transport or general anxieties around the return to work during the coronavirus pandemic where the employee is clinically vulnerable, in particular. Where the employee refuses to return to work because they reasonably believe that the threat to their health and safety in contracting coronavirus in the workplace is serious and imminent and that it cannot reasonably be controlled i.e. by the workplace measures that the employer has put in place, then any dismissal would be automatically unfair if they were to be dismissed for their refusal, leading to the risk of an unfair dismissal award, regardless of the employee’s length of service. Where the employee is refusing to return to work, for this reason, their concerns should be investigated in the first instance (whether or not the employee has raised the complaint as a formal grievance under the employer’s grievance procedure) and they should be reminded of the health and safety measures the employer has put in place to protect their and others’ health and safety. Where employers have carried out a risk assessment of the workplace to include an assessment of the risks in the workplace due to the coronavirus pandemic, as is a legal requirement under health and safety legislation and has followed government guidance in doing all they reasonably can to keep their employees safe, this will be the best defense to a complaint of this nature. Doing so will also help assuage any anxieties employees may have around the requirement to return to work, including on a reduced hours basis.


Accordingly, employees can be instructed to return to work where business circumstances require, in accordance with employment law.


Where agreement cannot be reached and there is a reduced requirement for work, employers may decide to consult with the employee for redundancy instead. During the redundancy consultation, the reduced hours/new shift pattern may continue to be offered as an alternative to redundancy, alongside any other suitable alternatives to redundancy.


As an alternative to flexible furlough, employers may continue to rotate employees off and on full furlough from July (i.e. with periods spent on furlough where no work is carried out at all, for which there is no longer a minimum 21-day requirement) with employees rotating off furlough to work their normal contractual hours during worked periods. This is provided that the claimed period via the CJRS is at least 1 week (with some minor exceptions).



Employers may also keep employees on full furlough entirely where they are not required to carry out work at all, or where it is agreed that they are not required to return to work, thus falling outside the flexible furlough scheme.

Source: Federation of Small Businesses.



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