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Furlough Claims under TUPE

Furlough Claims under TUPE

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Client incorporated 1st April so need to submit the April Furlough claim under TUPE,  Can't do it online so phoned HMRC - was told that it had to be done by a technician so she took basic employee details and PAYE references (old and new) and said that I would get a call back within 15 days.   After querying how this fit in with the 15/05 deadline she couldn't help.  Can anyone tell me if this is the usual procedure for TUPE claims as she also mentioned that claims with no NINO had to be done by a technician  - I have done the latter over the phone with no issue?  

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By Hugo Fair
13th May 2021 16:41

I can't work out what you're describing. TUPE is usually invoked where an existing company takes over another - and there is a transfer of undertakings (originally made by the acquired company) to the acquiring company, so as to protect the transferred employees' existing T&Cs (such as any furlough agreements).

So how does the acquiring company end up being "incorporated 1st April"? And why has (apparently) a new PAYE scheme been set up?

Sorry that this doesn't help with your core question, but there may be alternative answers if the scenario is fully understood.

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Replying to Hugo Fair:
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By Wanderer
13th May 2021 16:47

Sole trader to limited? Just a guess!

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Replying to Wanderer:
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By Hugo Fair
13th May 2021 16:56

By default I wouldn't expect TUPE to apply in that situation (as it only protects 'the rights' of employees not the self-employed).

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Cragside Lake
By Jacqueline Murray
13th May 2021 16:59

A self-employed person can have employees.

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By Hugo Fair
13th May 2021 17:07

Yes, but Wanderer referred to a 'sole trader'!

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Replying to Hugo Fair:
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By Wanderer
13th May 2021 17:23

Hugo Fair wrote:

Yes, but Wanderer referred to a 'sole trader'!

Yes, a sole trader with employees incorporating their business & transferring over their employees.
OP has now confirmed just a partnership rather than a sole trader.
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Replying to Wanderer:
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By kathyk0410
13th May 2021 17:00

Yes sorry it's me not fully reading the question I posed. It was a partnership with employees that incorporated so all the employees have moved from one employer to another

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Replying to Hugo Fair:
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By kathyk0410
13th May 2021 16:55

Maybe TUPE is the wrong word. The employees of the partnership have been transferred over to the limited company. HMRC requires a new PAYE scheme for the limited company so you can't submit the claim online using the new reference. I thought that TUPE also related to where the business had been transferred - which is has been from the partnership to the limited company.

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Replying to kathyk0410:
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By Hugo Fair
13th May 2021 17:09

OK ... well you've left my experience-base behind now.

Strictly speaking, what you're trying to do is not solely TUPE dependent ... according to https://www.gov.uk/guidance/check-which-employees-you-can-put-on-furloug... - "you may still be eligible to claim in respect of the employees if the TUPE or PAYE business succession rules apply to the change in ownership." Hopefully you're covered by the 'PAYE succession rules' (whatever they are) ... and the transferred employees meet all the stated eligibility criteria.

Fingers crossed ... but I think we're back to your original question(!) - in which case see Jacqueline's clear answer below.

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Replying to Hugo Fair:
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By kathyk0410
13th May 2021 18:29

Yes I think we should be covered by that - from an online search (sorry google is my friend - I know you are not a fan of online search results but sometimes needs must)
A succession is when the ownership of business changes from one legal entity to another and the new owner takes responsibility for the pay records.

Extract from PAYE 30045

The new owner must be a different legal entity from the old employer. For example, an existing sole trader or partnership employer that incorporates as a limited company or a new owner acquiring the business who is unconnected with the old employer.

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Cragside Lake
By Jacqueline Murray
13th May 2021 16:51

We have been dealing with claims for TUPE staff since November. Yes the usual process is that after you ring HMRC a technician rings you back - we have found it usually takes 1 to 3 days for the call back to happen. In my experience as long as your initial phone call is done by the deadline it is fine if the call back is after that date.

The most recent one (April) should be our last as the furlough reference date becomes 2nd March so we should be able to claim online.

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By BigBadWolf
14th May 2021 11:49

I have had a similar situation with a client, and was told by HMRC this is the usual procedure.

They said up to 15 days for a call back and they are able to extend the 15/05 deadline if your call back is delayed. However in practice I have received a call back either on the same day or on the next day, and have successfully made claims for 4 months under this procedure.

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