Can an employer claim under the Coronavirus Job Retention Scheme for an employee who was on unpaid leave before the scheme was announced?
As the Coronavirus Job Retention Scheme is closed to new entrants from 30 June 2020, an employee cannot be furloughed for the first time after 10 June 2020 (except where they are returning from statutory family leave or they are a military reservist returning from active service). An employee can be furloughed only if the employer has previously made a claim for them for a furlough period of at least three consecutive weeks, falling between 1 March 2020 and 30 June 2020.
The HM Revenue and Customs guidance on the scheme states that employers could have furloughed employees who started a period of unpaid leave after 28 February 2020, provided that this was done by 10 June 2020 at the latest. If a period of unpaid leave started on or before 28 February 2020, the employee could not have been furloughed until the date on which the unpaid leave was due to end. The employer and employee could not agree to bring the leave to a premature end so that the employee could then be furloughed.
The HM Treasury Direction on the operation of the Coronavirus Job Retention Scheme from 1 July 2020 states that an employer cannot claim under the scheme for a period between 1 July 2020 and 31 October 2020 when the employee takes a period of unpaid leave or a sabbatical.