CJRS – WSM answers your questions

The fine details FAQs

The main details of the CJRS are provided on our website here which have addressed most of the FAQs we have received in respect of the scheme.

We have also received queries on the fine details of the CJRS and have set out below the answers to these questions:

Can a claim can be backdated to 1st March?

Can a claim be made for less than a three week period?

Can a claim be submitted in advance?

Is SSP included in the calculation of reference salary?

Can SSP be paid during a furlough period?

Do employees continue to accrue holidays during the furlough period?

Can annual leave be taken during the furlough period? How much would have to be paid?

Can employees be restricted from taking holiday?

Do employees have to be paid for public holidays and if so how much?

Can a claim can be backdated to 1st March?

Technically yes it can.

The Treasury Direction on this is not particularly clear however provided the employees met the eligibility criteria at 1 March it is possible to backdate a claim.

The eligibility criteria for backdating a claim to before 19 March are:

• Employee was employed as at 28 February
• Employee had been included in a RTI on or prior to 28 February
• Employee was furloughed (since this term only came into common parlance following the announcement of this scheme the more likely term used would have been “laid off”)
• The lay off resulted from coronavirus
• The lay off period was at least three weeks
• The employee was instructed to undertake no work during the lay off period and no work was undertaken
• The employee was not on social benefit leave or unpaid leave at the time

If the employees do not meet the above criteria between 1 March and 19 March a claim backdated to 1 March should not be made. To be clear the above criteria only apply for a claim between 1 March and 19 March. A claim may still be made for the period from 19 March provided the criteria are met with 19 March substituted for 28 February.

Can a claim be made for less than a three week period?

Yes. A claim can be made for any period.

However

• only one claim can be submitted for any one period
• once a claim has been submitted the next claim period must end three weeks or more after the end of the earlier claim period

Can a claim be submitted in advance?

Yes. Claims can be made in respect of an imminent payroll which earlier guidance from the government indicated was a payroll to be run within 14 days of the date of the claim submission.

However it is important to only one claim can be made in respect of a given period. It is not possible to amend a claim or make a “top up” claim for a period if the grant amount was underclaimed. So any claim submitted in advance should include all furloughed staff members for all the period they will be furloughed up to the date of claim. This does mean that a claim made in advance must exclude any employees who start a period of furlough after the claim is submitted.

Also note that all amounts claimed as a grant have to be paid to the employee in cash and are subject to PAYE in the normal way.

Is SSP included in the calculation of reference salary?

No. Where an employee has a period of social benefit leave (SSP, maternity leave, paternity leave, adoption leave etc) or unpaid leave the reference salary must be determined on the basis of what would have been paid to the employee during the leave period if the leave had been on the same terms as the employee’s paid leave during the reference period.

Can SSP be paid during a furlough period?

It can however the employer cannot claim both SSP and CJRS for the same days so it is expected CJRS will be claimed instead of the £95.85 per week SSP.

Also note an employee cannot be placed on furlough whilst they are in a period of SSP. The period of SSP can however be brought to an end so that the employee can be furloughed.

Do employees continue to accrue holidays during the furlough period?

The government have advised that they are keeping the holiday pay policy during furlough under review however the current advice is that furloughed employees continue to accrue leave as per their employment contract.

You can agree to vary holiday entitlement as part of the furlough agreement, however almost all workers are entitled to 5.6 weeks of statutory paid annual leave each year which they cannot go below.

Can annual leave be taken during the furlough period? How much would have to be paid?

An employer can require an employee to take annual leave during the furlough period however the employer would need to give twice as much notice as the length of the holiday you want them to take (e.g. ten days’ notice for five days’ holiday) unless the contract of employment says something else.

In addition employees can take pre-booked holidays and the employer does not need to allow rescheduling unless the employee would ordinarily have a right to reschedule.

Holiday taken during furlough should be paid at 100% of their normal rate of pay as required by the Working Time Regulations. So if staff pay has been reduced to the amount of the Job Retention Scheme grant (80% or maximum of £2,500 per month) the employer will need to top this up for any holiday taken whereas top up may not be required for non-holiday furlough period.

Can employees be restricted from taking holiday?

Yes where the employers can show there is a business need or if the employer gives the required amount of notice under the Working Time Regulations (by giving notice of the same number of days as the holiday the employee wanted to take, e.g. five days’ notice to prevent or cancel five days of holiday).

There is a new right for employees to carry over holiday of up to four weeks into the next two holiday years if the employee has not been able to take their statutory annual leave entitlement due to coronavirus.

Do employees have to be paid for public holidays and if so how much?

There are four public holidays during the currently announced period of the Coronavirus Job Retention Scheme and employees are entitled to be paid for public holidays.

Public holidays are usually included in the minimum 5.6 weeks of statutory paid annual leave required to be provided to all employees and employees would usually be required to the take leave on the public holidays.

Where this is the case public holidays are treated in the same manner as days of annual leave and employees are entitled to the normal rate of pay. For furloughed staff whose pay has been reduced to the amount of the Job Retention Scheme grant (80% or maximum of £2,500 per month) the employer will need to top this up for each of the public holiday days.

For those employees who would usually be required to work on public holidays, the public holiday can be treated as a normal working day. Where such employees are furloughed there is no requirement on the employer to top up to their normal rate of pay.