We now have the benefit of a new (31 page) Direction from HM Treasury which, together with the previous three directions, fleshes out the points made in our last Coronavirus Job Retention Scheme (“CJRS”) blog.

The new Treasury Direction sets out the legal framework for the CJRS and explains in more detail how the newly extended CJRS will operate until 31 January 2021. A fifth Treasury Direction will be published later covering the remaining two months of the CJRS (February and March 2021).

Key points:

• eligible employees can be placed on furlough leave instead of being dismissed or laid off;

• it is no longer possible to retrospectively furlough employees - employers had until 13 November 2020 to put appropriate furlough agreements in place to achieve this;

• furlough agreements need to be put in place before the start of the relevant claim period, though they can be varied during the claim period. It should be possible to vary previous furlough agreements so long as this happens before furloughing the employee under this newly extended CJRS;

• as mentioned in our last blog, previous guidance suggested that if you were an employer considering dismissing any furloughed employees for redundancy (or any other reason), it would be prudent to issue notice of dismissal before 1 December 2020 otherwise you may not be able to claim under the CJRS in respect of any of the notice pay. The new Direction confirms our view - no claims may be made for any day that an employee is serving notice between 1 December 2020 and 31 January 2021;

• HMRC will publish information about CJRS claims on the internet, including the name of the employer and a “reasonable indication” of the amount claimed. Only if an employer can show that publication would expose their workforce to “serious risk of violence or intimidation”, will they be excluded from publication. This is unlikely to apply to most employers.