Amendments to the furlough guidance

16th November 2020 Employment

The government have today updated the extended furlough guidance which was published on 11th November 2020. The bulk of the guidance still remains relevant, those areas which have been updated are detailed below:

The guidance has now been updated to confirm that for claim periods after the 1st December 2020 an employer cannot claim for any days on which an employee is serving statutory or contractual notice and this includes people serving notice of retirement or resignation.

For claim periods before 1st December, an employee can make a claim only in respect of statutory notice, the guidance is currently silent on contractual notice for the period prior to 1st December 2020.

Two clarifications have also been included in the updated guidance, which are as follows.

The first clarification confirms that employees whose fixed term contracts ended on or after the 23rd September 2020 can be reemployed and claimed for on furlough.

The second clarification relates to employees who have been TUPE transferred and when they will qualify for furlough. The guidance now clarifies the position, which is as follows:

A new employer is eligible to claim for the employees of a previous business transferred as long as:

  • the TUPE or PAYE business succession rules apply to the change in ownership
  • the employees being claimed for have previously had a furlough claim submitted for them by their prior employer, (the normal eligibility rules apply).

The maximum number of employees that the new employer can claim for will be the total of:

  • the maximum number of employees the new employer claimed for in any one claim ending on or before 30 June; and
  • the number of employees that are being transferred to the new employer who have had a claim submitted for them in relation to a furlough period of at least 3 consecutive weeks taking place any time between 1 March 2020 and 30 June 2020, this is subject to the maximum cap the previous employer was subject to.

The employees being claimed for should have been:

  • transferred from their old employer to their new employer on or after 1 September 2020
  • employed by either their old employer or new employer on 30 October 2020
  • on a PAYE Real Time Information (RTI) submission to HMRC, by their old or new employer between 20 March 2020 and 30 October 2020, notifying a payment of earnings for that employee

If you need advice or have any queries about dealing with any workplace issues arising from the COVID-19 outbreak, please contact Paul Chamberlain or another member of the employment team at JMW Solicitors LLP on 0345 241 5305.

This note is for general guidance only and should not be used for any other purpose. It does not constitute, and should not be relied upon as legal advice.

JMW Solicitors is a Limited Liability Partnership. The copyright in this note is owned by JMW. Any reproduction of this article should be credited to JMW. All rights reserved.​​​​​​

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Grace O'Driscoll is a Trainee Solicitor located in Manchesterin our Trainee Solicitors department

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Paul Chamberlain is a Partner and Head of Department located in Manchesterin our Employment department

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