We have summarised some of the salient points from the new furlough rules for employers. 


Eligibility

Gateway

To be eligible to be furloughed from 1 July, the employee must have been furloughed for at least 3 consecutive weeks between 1 March and 30 June 2020. 

  • This, as predicted, takes care of the quandary that some had as to whether someone must have been furloughed on 30 June.  
Maximum number 

The number of employees you can claim for in any single claim period from 1 July cannot exceed the maximum number of employees that you claimed for under any period before 30 June. 

  • The exceptions to this rule are those coming back from statutory parental leave and TUPE (please see below). 
No overlapping months

After 1 July, employers cannot make claims that cross calendar months i.e. the employer will need to make a separate claim for the period up to 30 June. 

  • For example, if the employer is claiming for an employee who started a new furlough period from 20 June for the minimum of 3 weeks, then they will have to claim for the period from 20-30 June, and then make another claim for the remaining period in July. 

Flexible furloughing

  • From 1 July, employers can bring back employees to work for any amount of time and any work pattern. 
  • Employers can claim for the unworked hours, "compared to the hours that they would normally have worked in that period". 
  • Consent: A new consent will be required for flexible furloughing, meaning a new written agreement which should be kept for five years.
  • Record keeping: Employers must keep records of the hours worked and the hours not worked by the employee.  
  • Minimum period: The minimum number of days an employee can be flexibly furloughed is one week (or 7 calendar days).
    • However, where a previously furloughed employee starts a new furlough period before 1 July that employee must be furloughed for the minimum of 3 weeks even if the expiry of that period cuts into July (be wary of overlapping months).
    • Q: It is not absolutely clear whether this new minimum period of 1 week only applies to flexible furloughing or generally to all furloughing. It seems the latter.  
  • During the hours that are recorded as being unworked, the employee must not work for the employer but can undertake volunteer work, training or for another employer if the contract allows. 

Holiday

For the first time, the guidance addresses the holiday point head on stating, among others, that the employer can require furloughed employees to take holiday in accordance with the WTR. 

TUPE

Gateway

For transfers after 10 June, a transferee can furlough previously furloughed staff of the transferor so long as the TUPE or PAYE business succession rules apply and the previously furloughed employees were furloughed for the minimum of 3 consecutive weeks between 1 March and 30 June. 

Maximum number exception

The total number is the maximum number claimed by the transferee in any one claim ending on or before 30 June and the number of transferred employees who had been furloughed for minimum of 3 weeks between 1 March and 30 June (this latter number is subject to the maximum number the transferor was subject to). 

Statutory Parental Leave 

Gateway

Employers can furlough, even for first-timers, those returning from maternity, shared parental, adoption, paternity or parental bereavement leave after 10 June, provided that: 

  • The employer has validly furloughed at least one employee for minimum of 3 consecutive weeks between 1 March and 30 June;  
  • The employee returning started their leave before 10 June and has returned from the leave after 10 June; 
  • The employee was on the PAYE payroll on or before 19 March i.e. RTI submission made on or before 19 March 2020. 
Maximum number exception

This is increased by the number of employees that you are furloughing for the first time because they are returning from parental leave. 

Key contact

Sungjin Park

Sungjin Park

Knowledge Lawyer, Employment
London

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