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What to do about staff who TUPE after 29 Feb?

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Just when I thought I had covered the bases 2 more scenarios pop up. The first is how could the acquiring employer claim under CJRS if one of the criteria is the employee must have been on the payroll on 28 Feb. I would like to think this would be covered but I want to avoid a "computer says" problem when the portal opens. This particular transfer is scheduled for 1 April and the other business aspects are so far advanced an overall delay is not feasible. One suggestion to mitigate is to agree an amendment to the SPA that provides for the employees to be kept on the transferor payroll for now, and for the transferee to be invoiced for the net payroll costs.

Appreciate your thoughts.


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By paul.benny
29th Mar 2020 19:06

Good question.
I would recommend the amendment to the SPA as you suggest. As the seller, I might insist on all sorts of indemnities - not only against non-receipt of the JRS subsidy but also any employee claims.

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By ry4n
31st Mar 2020 09:32

I've just asked HMRC (Employer helpline) how to treat TUPE'ed employees in relation to calculating the earnings of employees who's pay varies (seasonal business). The employees have been employed by the 'business' for more than 12 months, but the business was transferred mid-year to a new employer/PAYE scheme (both employers were associated).

The answer was to treat the employees as if they had been employed by the same PAYE scheme for the entire 12 month period (reason given: 'because it's not the employees fault that they changed schemes').

They did mention that this might cause an enquiry from HMRC as the RTI data will not match the CJRS claim! They wern't sure whether the claim portal will have box to provide more details on a particular claim.

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