No Furlough pay due late RTI by employer

JATP

Daughter started new job mid Feb, Employer stated in writing, in March when she was put on Furlough, she would qualify for Furlough payment. However, as no pay was forthcoming at end of April, when she queried with company, she was informed that they only passed her details (RTI) to HMRC on 28th March, after the cut-off of 19th March, so gets NO Furlough pay. Due to the cutoff, she can't go back to her old employer for Furlough either.

Seems like a cockup on part of her employer, what can she do next?
Thanks for reading.

sharpe106

Nothing unfortunately except to see if she is able to claim any benefits. 

LilElvis

Sorry that your daughter is in this position but the employer isn't to blame. The decision to make 19 March the cut off date wasn't made until after the fact - something no employer could have foreseen. At the time they communicated with your daughter the rules were still changing and being clarified - these are unprecedented measures after all - and I'm sure they were acting in good faith as they understood the rules at the time. 

Jeremy535897

There is a common misconception that employers are entitled to pay employees what they as employers are entitled to recover under CJRS. This is not correct. An employee is entitled to their current rate of pay until their contract of employment is amended (or they are laid off). It is unusual for employers to be able to reduce an employee's pay unilaterally. What should happen is that the employer discusses furloughing an employee with that employee, and that discussion may well include amending the contract of employment to reduce the employee's pay temporarily to what the employer believes it is entitled to under CJRS.

If that has happened in your daughter's case, she should receive 80% of her pay, whether or not the employer can recover it under CJRS. Sometimes the contract of employment is amended so that if the employer cannot recover the pay under CJRS, they can recover it from the employee. There may be issues over how enforceable such a term is.

When the employer discovers that it cannot recover an employee's wages under CJRS, it may decide to make the employee redundant. That I suspect may be the most likely outcome for your daughter. They don't have to justify the redundancy for someone employed for such a short time, and statutory notice would be one week (her contract of employment might give her more entitlement).

If she is on a monthly salary, presumably they rolled over the wage she was due for February? Otherwise her first FPS should have been submitted in good time.

JATP

Thanks for reply.
Yes, they rolled over Feb pay into March.
She is still in discussions with her employer, who currently have her status as "Furloughed without Pay", whatever the legal basis for this is. They have indicated they don't wish to make her redundant (yet) 

calcotti

She could look at claiming Universal Credit. https://www.citizensadvice.org.uk/benefits/universal-credit/. 

There are online calculators to help her assess entitlement  https://www.gov.uk/benefits-calculators

She will be excluded from UC if she has savings over £16,000.

Jeremy535897

What date did they change her status to furloughed without pay, and when did they tell her? It seems to me that she would have an argument that they should pay her 80% up to the date they told her, but there is a risk they could just make her redundant (they can do anyway, of course).

EssJayD

All depends on what was in the furlough agreement, most employers I know put a clause in to mitigate for any changes in the CJRS scheme and stated they would class the period as unpaid lay-off if they cant claim under the CJRS.  If shes paid monthly, then the employer doesnt have to send the RTI off until the month after which I'm guessing is what happened here, so not necessarily a !!!!!!-up.

As an aside recouping costs in this situation is absolutely enforceable if its provided for in an agreement  (so e.g. where an employer has paid out 80% already and then finds the employee is not eligible, they can deduct the furlough 'over payment'  as they normally could with any other over payment of wages) whether employers would bother is another matter.