Following updated guidance published by HMRC at the weekend, a few grey areas have been clarified, albeit some still remain…

What we now know:
• Perhaps the most useful clarification so far: employees can be furloughed multiple times ! But each period must be at least three weeks and confirmed in writing to the employee. This allows employers to rotate furloughed staff.
• Furlough must be recorded in writing and kept for 5 years
• Workers (e.g. cleaners) who were paid via PAYE from 28.2.20 can be furloughed
• Employees who were dismissed after 28 February 2020 can be rehired and furloughed. There are a few risks with this:
– employers should watch out if this now gives employees two years’ service
– it’s possible that HMRC could subsequently decide this is somehow fraudulent
– can the employer afford to do this? How will this affect cash flow?
• Company directors can be furloughed, there must be a formal adopted resolution, recorded in writing
• Furloughed employees (earning 80%) can work for another employer (earning 100%)=180%
• Further clarification on rates of pay during furlough. Pay is either the employee’s pay as at 28.02.20; or, if the employee’s pay varies, the higher of either the pay for the same month in the previous year or the average monthly earnings over the 2019/2020 tax year. ‘Pay’ includes wages, past overtime (presumably only compulsory guaranteed overtime) and contractual commission payments but not discretionary bonuses, tips or benefits in kind such as health insurance etc.
• Workers can be furloughed from multiple jobs

What we still don’t know
• At what rate annual leave should be paid if a furloughed employee takes annual leave during a period of furlough?
• Following on from that, can an employer require a furloughed employee to take annual leave?
• What happens if a furloughed employee becomes sick? Are they paid SSP ?
• What duties can directors carry out?
• What happens to employees TUPE’d after 28.02.20?

For all legal advice please be in touch with your usual contact at Thompson Smith and Puxon, or for advice specifically about the employment of staff and workers, please email or call:

Jolyon Berry at jolyon.berry@tsplegal.com or 07771542740. Jolyon is head of the employment team and a Legal 500 “leading individual”.
Lisa Dixon at lisa.dixon@tsplegal.com or 07712 301328
Sam Welham at sam.welham@tsplegal.com or 01206 217028