Can Shielding Employees Still be Furloughed?

April 30, 2020, By

Our Employment team have provided an update on the latest guidance regarding furloughed employees.

Shielding or Self-Isolating Employees

If you have any employees who are shielding as a result of the coronavirus pandemic, it is important that you are aware of the potential implications of the updated SSP (Statutory Sick Pay) Regulations 2020 which came into force on 16th April.

When the Coronavirus Job Retention Scheme (CJRS) was launched, in circumstances where shielding employees were unable to work, many employers took the decision to place those employees on furlough leave.

This is in line with the Government guidance for Employers on the CJRS and the ACAS guidance, currently stating that employers are entitled to furlough employees who are unable to work because they are shielding in line with public health guidance, or because they need to stay at home with someone else who is shielding.

The new regulations do not sit well with the Treasury Direction and Government Guidance on the CJRS.

Eligibility for Statutory Sick Pay

The new SSP Regulations state that, as of the 16th April 2020, employees who are shielding are now eligible for SSP.

The Treasury Direction means that HMRC does not have the power to reimburse under the CJRS where an employee is eligible for SSP at the point that they are instructed to cease work and are furloughed. This stands whether or not they are actually receiving their Statutory Sick Pay.

Furloughing after 16th April

There is now a risk that, if employers seek to furlough shielding employees after the 16th April, they won’t be able to recoup their furlough pay under the CJRS.

The Treasury Direction states that, essentially, furlough can’t begin until SSP entitlement ends.

If there was no entitlement to SSP when the direction was given to cease work, then it follows that this section does not seem to apply, and the employer may be able to claim from the CJRS.

Therefore, there appears to be nothing in the Treasury Direction to prevent employers from claiming in respect of shielding employees who were furloughed prior to 16 April 2020, on the basis that they were not entitled to SSP at the time they were furloughed.

We hope that further clarification will be provided from the Government on this point. In the meantime, we recommend that you seek legal advice before taking any action in relation to shielding employees.

Contact Us

Should you have any queries in relation to the above, or in respect of any other employment related matters, please do not hesitate to contact one of the partners in our employment team.

Email or call Tracey Guest (07802 689799) or Sarah Calderwood (07525 071534).

If you would like to speak with a legal professional about any other aspects of the law or its impact with Coronavirus, call us on 0161 969 3131 or visit our legal support hub for specific guidance.