Coronavirus Job Retention Scheme – The Empire Strikes Back
Employers who have benefited from the Coronavirus Job Retention Scheme (CJRS) are required to retain records on their operation of the scheme for six years. These records include the amounts of the CJRS claim; claim for each employee; calculations of grant and any corrections made; flexible furlough post 1 July; the usual hours worked and the actual works worked for each employee.
The Government will shortly introduce legislation to tackle perceived abuse of the Coronavirus Job Retention Scheme which will include a 30 day window for employers to effectively shop themselves and confess to inappropriate use of the system.
In some cases that is clear cut. If an employer has furloughed an employee and subsequently asked them to work whilst still claiming from the fund, this would be a clear abuse and what the legislation is directed at.
There are existing criminal sanctions for falsification of records and identity theft along with use of false names etc which are likely to land the culprits in prison.
A more nuanced and interesting challenge is likely to be around the fringes of the scheme which will entail a close analysis and interpretation of the meaning of the various information leaflets that were produced by the Government as the crisis developed, read in the context of subsequent Treasury reports. One can only assume the treasury will be keen to recoup some of the Chancellor’s profligacy.
For instance, as its name would suggest the scheme was adopted specifically to avoid a calamitous widespread and immediate flux of redundancies and job losses which might have crashed the economy. After its introduction, information leaflets from the Government suggested that it was open to all, whether or not job losses were contemplated. More recent Treasury guidance has tended to emphasis a link to the likelihood of job losses.
What then of the employee who is serving three months’ notice of redundancy. Are they eligible for furlough pay or not? On the one hand such employers may be the ones most in need of help but on the other hand they will have signed to abide by the terms of the scheme.
HMRC has said that between April 2nd and June 2nd this year they have had over 2,000 reports of abuse of which 900 have been reviewed and approximately two thirds have had action taken.
Like any blockbuster, the sequels will run and run.
Dermott Thomas is a partner and specialist litigator/advocate at Barker Gotelee, Ipswich employment law solicitors
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