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Introduction to this document

Letter seeking agreement to flexible furlough

Employees can be on full furlough or they can be on flexible furlough, under which they work for you on a part-time basis but remain on furlough for the remainder of their unworked usual hours. Use our letter to guide you through seeking their consent to a flexible furlough arrangement.

Part-time working options

As an alternative to full furlough, the Coronavirus Job Retention Scheme (CJRS), which has now been extended until 30 September 2021, enables you to bring employees (and other PAYE workers) back to work on a part-time basis, whilst still keeping them on furlough in relation to their usual hours not worked. They can work for any amount of time and for any shift pattern and there is no minimum period for which they must be furloughed. Under the rules, you need to agree with your employee any flexible furlough arrangement and confirm that agreement in writing. In addition, any changes to working hours requires either a term in the employee’s employment contract permitting this or their express consent. Without this, you risk a breach of contract, unlawful deductions from wages and/or constructive dismissal claim. So, our Letter Seeking Agreement to Flexible Furlough is intended to obtain the employee’s consent in writing, both to the proposed temporary part-time working hours arrangement and to the maximum amount of wages you’ll be paying during it. Keep a record of your communication for five years. If 20 or more staff are involved here, you’ll additionally need to comply with collective consultation obligations as they apply to changing terms and conditions of employment, if your other option to non-consent is going to be staff redundancy. If you don’t have any work for employees to do (for example, because your business premises have been legally required to close), they can remain on full furlough if they are already on it (see our Letter Extending Furlough) or you can seek their agreement to a new full furlough arrangement (see our Letter Seeking Agreement to Full Furlough). To be eligible for the extended CJRS, employees must have been on your PAYE payroll on 30 October 2020, but they don’t need to have been furloughed previously, and neither do you need to have previously used the CJRS. For periods from 1 May 2021 onwards, employees must have been on your PAYE payroll on 2 March 2021, and again they don’t need to have been furloughed previously, and neither do you need to have previously used the CJRS.

Pay position

You pay the employee at their normal hourly pay rate for their actual hours worked, or a pro rata amount of their salary proportionate to actual hours worked, and then you still claim the CJRS grant from the government for the remainder of their usual hours that aren’t worked, i.e. their furloughed hours. So, you will need to report through the HMRC online portal the exact hours an employee worked, the usual hours they would be expected to work and their furloughed hours in a claim period. When claiming the grant for furloughed hours, you will also need to report and claim for a minimum one-week period, but you can still make claims for longer periods, e.g. monthly. Until 30 June 2021, the government will pay 80% of an employee’s usual pay for furloughed hours, up to a cap of £2,500 per month. The cap is proportional to furloughed hours. You only need to cover employers’ NI and employer pension contributions for those furloughed hours. For periods in July 2021, CJRS grants will cover 70% of employees’ usual pay for furloughed hours, up to a cap of £2,187.50. In August and September 2021, this will then reduce to 60% of employees’ usual pay for furloughed hours, up to a cap of £1,875. You will need to continue to pay your flexibly furloughed employees 80% of their usual pay for furloughed hours during this time, up to the £2,500 monthly cap. This means that, for periods between July and September 2021, you will need to fund the difference between this and the CJRS grants yourself.

Letter contents

Our letter sets out what part-time working arrangement you propose, how long you expect flexible furlough to last, in what circumstances it would end and what the employee would be paid during it (essentially their full pay for actual hours worked and then 80% of their usual pay, subject to the cap, for furloughed hours). It then asks the employee to sign and date the attached acceptance slip to confirm they’re willing to accept the flexible furlough arrangement you’ve proposed.