Further changes made to Coronavirus Job Retention Scheme in time for opening of portal

Employers will have been sent links on Friday evening by HMRC to some newly published calculation guidance to assist them with making claims under the Scheme in time for the opening of the portal today. This needs to be read together with the fifth revision of the employer's guidance, also published on 17 April, and the Treasury Direction published on 15 April.

Here is a quick summary of important clarifications and new developments over the past few days:

• The cut off-point for the application of the scheme in relation to employees on the payroll has been moved from 28 February to 19 March
• The Scheme will now run for four months until the end of June “but it may be extended if necessary”
• The record-keeping obligations have been extended, so that employers are not only required to keep written records of each employee furloughed, but also of the calculations made in relation to each claim
• It is now clear that employees are able to take holiday while on furlough. Holiday pay will be calculated in accordance with the Working Time Regulations, so employers limiting their payments to the amount of the Government grant will in most circumstances need to top up to 100% of normal pay what they are paying for any period of holiday which falls during the furlough period. However, the calculation guidance adds: “During this unprecedented time, we are keeping the policy on holiday pay during furlough under review.”
• There have been further amendments to the Statutory Sick Pay scheme (with effect from 16 April) to extend eligibility to the most vulnerable category of individuals who are shielding as well as those who are self-isolating, but once furloughed, employees are not eligible for SSP

Employers will welcome the additional detail, particularly when it comes to calculating claims, but the fact that there are now at least three key documents to which employers will need to refer increases the scope for confusion and inconsistency. One particularly troubling issue which remains is the question of employee consent. Although the guidance has been further revised, and this offers some reassurance, it has still not in our view resolved the inconsistency with the Direction (which arguably takes precedence) on this point. For more information on this issue see our earlier blog posting here.

On a more positive note, there is a welcome acknowledgement in the calculation guidance that there may not always be one correct answer:

“Choose the calculation you think best fits the way your employee is paid. For example, if you pay your employee a regular salary, use the calculation for fixed pay amounts. HMRC will not decline or seek repayment of any grant based solely on the particular choice of pay calculation, as long as a reasonable choice of approach is made.”

The portal opened at 5.30 this morning.