Although additional guidance continues to be released on the Job Retention Scheme, clarification has not yet been given in respect of the position where there has been a transfer of employees to a new PAYE scheme under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE).
Where there has been a change in employer under TUPE, employees are transferred under the same terms and conditions of employment. Continuity of employment is also maintained.
The guidance under the Job Retention Scheme, however, requires employees to have been on the PAYE payroll as at 28 February 2020. On the strict reading of this, employees which have been transferred under TUPE since 1 March 2020 would not currently be eligible for furloughed leave under the scheme.
This would, however, seem to go against the intention of the Job Retention Scheme, as in such instances, a business may have no other option but to consider redundancies. It also goes against the protection provided under TUPE arrangements.
We would therefore hope that guidance will be released shortly to provide further clarification on this matter. In the meantime, however, if transfers have not already taken place, it may be worthwhile looking at whether these can be deferred if possible. Advice from your employment lawyer should also be taken on any such TUPE transfers.