Furloughing staff: House of Commons looks at the inconsistencies between government guidance and Treasury Direction

As regular readers of this blog will know, there are significant inconsistencies between government guidance about the scope of the Coronavirus: Job Retention Scheme and the Treasury Direction. 

Government guidance was first issued on 26 March 2020 and was updated three times before the Direction was published. That guidance has been updated since then (we're now on version 7) but there are still inconsistencies between the current version and the Direction. 

The House of Commons Library has published a Briefing Paper providing frequently asked questions about the CJRS. It's aim is to inform MP's about the issues rather than to help employers decide how to interpret the rules. However, it has some interesting things to say about the differences between the two documents.

What is the relationship between the Treasury Direction and the guidance?

As we indicated in our blog about the official rules, if there are inconsistencies between the documents, as a matter of law the Direction will prevail. However, HMRC appear to be saying (albeit on Twitter) that it only expects employers to follow government guidance. But, while this may be indicative of how HMRC will approach claims in practice, it does not have any bearing on the meaning of the law. That said, it may be possible for employers who have relied on earlier guidance to bring a claim for Judicial Review.

Can the Direction be amended?

Yes, and as the Paper makes it clear, it will be amended to reflect the fact that the Chancellor has extended the furlough scheme to the end of June. It's therefore possible, that the government will take this opportunity to clarify areas of confusion (but I'm not holding my breath)!

Contentious issues

The Paper identifies a number of issues where the Direction contradicts, or is different from the most recent guidance:

• Training - The guidance says that employees can undertake training while on furlough, but the Direction is narrower, providing that employees can only undertake training that is 'directly relevant' to their job.
• Agreement to furlough - The Direction requires there to be an actual written agreement, whereas the guidance simply requires a 'written record'  and expressly states that the employee doesn't have to provide a written response. Our views on this are here.
• Sick leave - The Direction says that if an employee is currently receiving or is eligible to receive SSP, they can only be furloughed when their SSP period ends. The guidance flatly contradicts this: it says that employees on sick leave can be furloughed if the decision is made on business grounds. 
• Staff who are shielding -  Any employee who is shielding in line with medical advice is now entitled to SSP. The guidance says that people who are shielding can be furloughed, but the restrictions set out in the Direction (as outlined above) will prevent employers furloughed these extremely vulnerable people, for at least 12 weeks. They are only entitled to SSP at the fixed rate of £95.85 unless they also qualify to receive contractual sick pay.

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