On 15 April the Government issued its fourth guidance update on its Coronavirus Job Retention Scheme (CJRS).
https://www.gov.uk/guidance/claim-for-wage-costs-through-the-coronavirus-job-retention-scheme
On the same day, the Treasury also issued a Direction to HMRC giving authority and instructions to HMRC for making payment under the CJRS. In the words of the Government announcement which accompanied it, the Direction "sets out the legal framework for the [Cornonavirus Job Retention] Scheme". The Direction will therefore take precedence over all guidance by the Government on the CJRS issued on or prior to 15 April.
One key provision within the Direction is the requirement at paragraph 6.7 which states
"An employee has been instructed by the employer to cease all work in relation to their employment only if the employer and employee have agreed in writing (which may be in an electronic form such as an email) that the employee will cease all work in relation to their employment." (our emphasis in bold).
The requirement for the employer and employee to agree in writing is significant as it is at odds with the Government's previous guidance (which indicated that the only matter required to be in writing is the employer's confirmation that the employee has been furloughed) and many companies may have furloughed employees with oral agreement or by relying on existing contractual terms.
Written agreement is commonly in the form of a duplicate letter from the employer signed and returned by the employee although paragraph 6.7 states the agreement in writing "may be in an electronic form such as email".
Originally published 30 June, 2020
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