• GL
Choose your location?
  • Global Global
  • Australia
  • France
  • Germany
  • Ireland
  • Italy
  • Poland
  • Qatar
  • Spain
  • UAE
  • UK

CJRS: Treasury Direction published and important change to notice provisions

16 November 2020
With effect from 1 December 2020, the CJRS can no longer be used to cover pay during notice periods. Read the latest update on the scheme from our employment law experts.

A further Treasury Direction has been published providing the legal framework to the extended Coronavirus Job Retention Scheme (CJRS). The most notable change is that, with effect from 1 December 2020, the CJRS can no longer be used to cover pay during notice periods.

Key considerations include:

The Treasury Direction – The new Treasury Direction extends the CJRS until 31 March 2021, however it only sets out the detail for the CJRS until 31 January 2021.  We can expect a further direction in due course covering the mechanics of the scheme for the period 31 January 2021 to 31 March 2021.

Job Retention Bonus - The Coronavirus Job Retention Bonus is formally withdrawn under the Treasury Direction.  

Notice provisions – As intimated in the initial guidance and confirmed in the updated guidance, claims cannot be made for a day that an employee is serving notice of termination between 1 December 2020 and 31 January 2021.  The updated guidance states:

"For claim periods starting on or after 1 December 2020, you cannot claim for any days on or after 1 December 2020 during which the furloughed employee was serving a contractual or statutory notice period for the employer (this includes people serving notice of retirement or resignation). If an employee subsequently starts a contractual or statutory notice period on a day covered by a previously submitted claim, you will need to make an adjustment."

The Treasury Direction confirms the above position.  The Treasury Direction only refers to the generic term of "notice", however the guidance refers to both statutory and contractual.  

Employers which were seeking to rely on the CJRS to cover notice periods will need to carry out an urgent review.  Many employers which are in financial difficulties may take immediate action and serve notice of termination to ensure the CJRS can be used to cover some of the notice period up to 1 December 2020.   

Publication of CJRS claimant details – The latest guidance made it clear that employers claiming under the CJRS will be named.  The Treasury Direction provides a clear outline of the "employer information" that must be published by HMRC, including:
  • the name of the employer or the qualifying PAYE scheme,
  • if the employer has a company reference number, that number, and
  • the amount of the CJRS claim made by that employer.
HMRC may withhold such information if publication will expose the employer or its employees to "serious risk of violence or intimidation".  

 

Employee agreement - As set out in our previous Legal Update it is essential for the employer and employee to have a written agreement covering the furlough arrangement.  The key requirements under the Treasury Direction are that the agreement (including a collective agreement):

  • is made before the beginning of the period to which the CJRS claim relates (but may subsequently be varied to reflect any variation agreed between the employer and employee during the period to which the CJRS claim relates);
  • is incorporated (expressly or impliedly) in the employee’s contract, and
  • is made in writing or confirmed in writing by the employer (such agreement or confirmation may be in an electronic form such as an email).

The agreement (including a collective agreement) or confirmation must be retained by the employer for at least 5 years after it is made (or subsequently varied).

Conclusion 

The Treasury Direction sets out the much needed legal parameters for the CJRS.  Employers should also familiarise themselves with HMRC's extensive guidance as set out in our previous Legal Update.  The CJRS is constantly evolving and it is essential for employers to keep up-to-date.  A top priority at this stage is to ensure there is an up-to-date, robust furlough agreement in place before the beginning of the claim period to which it relates, providing as much flexibility as possible.  

If you need any assistance with the issues raised please do not hesitate to contact a member of the UK employment team. 

Further Reading

We use cookies to give you the best user experience on our website. Please let us know if you accept our use of cookies.

Manage cookies

Your Privacy

When you visit any web site, it may store or retrieve information on your browser, mostly in the form of cookies. We mainly use this information to ensure the site works as you expect it to, and to learn how we can improve the experience in the future. The information does not usually directly identify you, but it can give you a more personalised web experience.
Because we respect your right to privacy, you can choose not to allow some types of cookies. Click on the different category headings to find out more and change permissions. However, blocking some types of cookies may prevent certain site functionality from working as expected

Functional cookies

(Required)

These cookies let you use the website and are required for the website to function as expected.

These cookies are required

Tracking cookies

Anonymous cookies that help us understand the performance of our website and how we can improve the website experience for our users. Some of these may be set by third parties we trust, such as Google Analytics.

They may also be used to personalise your experience on our website by remembering your preferences and settings.

Marketing cookies

These cookies are used to improve and personalise your experience with our brands. We may use these cookies to show adverts for our products, or measure the performance of our adverts.