On 15 April 2020, the Chancellor gave a Treasury Direction setting out the rules, detail and eligibility requirements of the scheme.  This Direction is the legal framework under which HMRC will operate the Scheme and will take precedence over the guidance, where the guidance differs from the Direction issued.

There are several inconsistencies between the Treasury Direction and HMRC’s guidance.  We understand that HMRC have indicated that it will treat applications under the CJRS in light of the guidance.  However, if they make payment where they are not entitled to do so, they could be acting unlawfully and beyond their powers granted to them by Government.

Some of those areas of discrepancy are below, together with links to our FAQs where there is more commentary on the issue:

  • Whether those employees whose employment ended before 19 March 2020 can be re-engaged and furloughed. (See Entitlement to the scheme section below)
  • Whether an employee who is entitled to SSP is entitled to be furloughed. (See Entitlement to the scheme section below)
  • Whether an employee needs to have given written consent agreeing to furlough. (See Implementing furlough leave section below)
  • What training an employee can undertake whilst on furlough. (See What can an employee do during furlough? section below)

It is hoped that HMRC will clarify its position on reimbursement for employers who have acted in reliance to the guidance to avoid further uncertainty for employers.

We are in unprecedented times and the situation is continually changing. The government is updating its advice and guidance as the situation develops and we will update these Q&As in light of any further developments.

This notification and our FAQs provide guidance only.  It is not intended as a substitute for legal advice.  Employers should seek legal advice on their particular circumstances.

Should an employer require assistance on the contents of this article or any other employment matter, please contact a member of our Employment Team.


Conditions for using the scheme

Entitlement to the scheme

Where there is still work

Implementing furlough leave

Holiday during furlough

What can an employee do during furlough?

Bringing furlough to an end

We will update you on our dedicated website pages as and when the Guidance is updated and we know more, but for further advice or assistance on these issues in the meantime please contact any member of the Employment Team.

This article is accurate as at 4 May 2020. Please check our COVID-19 Business Support  for up to date developments.