From today, 1 July, you can bring furloughed employees back to work part-time and still claim under the Coronavirus Job Retention Scheme for any normal hours not worked. There are no restrictions on the working pattern which can be agreed, which might vary week to week.

Who can we flexibly furlough?

An employee can only be put on flexible furlough if they have previously been furloughed for at least three weeks by 30 June (giving a cut-off date of 10 June). However, employees can be furloughed for the first time after 10 June if they are returning to work after family leave or are a military reservist returning after a period of mobilisation.

How can we put employees on flexible furlough?

To be eligible for the grant, you must agree any new flexible furloughing arrangements with employees and document that agreement in writing (which can include via email). The agreement should detail how many hours an employee will work each week (or how and when they will be notified of their varied working pattern); and what they will be paid for working hours and furloughed hours.

There is no need to enter into a new furlough agreement if an employee is continuing to be fully furloughed. All furlough agreements must be retained until at least 30 June 2025.

What do we need to pay flexible furloughed employees and how much can we claim under the scheme?

If employees come back to work on reduced hours, you will have to pay them as normal in terms of their employment contract for the hours they work (unless any variation to their terms is agreed).

A claim can be made under the scheme for the hours flexibly furloughed employees are not working, calculated by reference to their 'usual hours' worked in a claim period. They will be entitled to 80% salary, subject to the £2,500 monthly cap, for their non-working hours, the grant and cap reduced proportionately by any hours worked.

How do we calculate usual and furloughed hours?

If an employee is flexibly furloughed, you’ll need to work out their usual hours and record the actual hours they work as well as their furloughed hours for each claim period. There are different calculations for working out usual hours, depending on whether the employee works fixed or variable hours.

  • For employees with fixed hours, the calculation is based on the hours the employee was contracted for at the end of the last pay period ending on or before 19 March 2020.
  • For employees with variable hours, the usual hours will be calculated based on the higher of either (1) the average number of hours worked in the tax year 2019/2020; or (2) the corresponding calendar period in the tax year 2019/2020. Any hours of leave for which the employee was paid their full contracted rate (such as annual leave) must be included.

To calculate the number of furloughed hours (which you can claim for) start with the employee’s usual hours; and subtract the number of hours they actually worked in the claim period – even if this is different to what you agreed.

These calculations are complicated, especially as they require you to use calendar days rather than working days. The HMRC guidance contains some examples.

How many employees can we flexibly furlough?

You will not be able to claim for more employees than the maximum number you have claimed for under any previous claim in respect of the period until 30 June (there is an exception if employees are returning from a period of family leave or service as a reservist). This could be relevant if there have been periods of rotating furlough. So, for example, if you have submitted three claims between 1 March and 30 June and the total number of furloughed employees was 30, 20 and 50 employees, then the maximum number of employees you could furlough in a single claim from July would be 50.

What are the minimum furlough and claim periods?

There is no minimum length of time an employee has to be on flexible furlough for, although the minimum claim period is seven days (unless claiming for the first or last few days in a month). Claim periods can no longer overlap months.

Can we rotate employees on flexible furlough?

Yes, employees can be flexibly furloughed on a rotating basis. From 1 July, if agreed you can rotate employees between work and furlough on any length of cycle e.g. on a weekly basis.

More information on flexible furlough is available on Workbox, our online HR and employment law site. We have made all of our Coronavirus pages free to view, regardless of whether you are a current Workbox user, and you can access them here


Julie Keir

Practice Development Lawyer