16th October 2020
As the furlough scheme comes to an end, many employers will be at risk of falling foul of its stringent and complex rules and potentially facing penalties for ‘furlough fraud’, but with the 20 October amnesty introduced by HMRC, companies that have made genuine mistakes have a chance to rectify them without being penalised. Walker Morris’ Gwendoline Davies, Head of Commercial Dispute Resolution, and Andrew Northage, Partner in the Regulatory & Compliance team, share the facts businesses need to know ahead of the deadline.
The furlough scheme – designed to support businesses who are unable to pay the salaries of their full workforce during the coronavirus pandemic – is set to come to an end this month and thousands of businesses have come under investigation by HMRC for falsely or mistakenly claiming whilst employees have been working as normal, part-time, or ‘volunteering’ their time.
According to research by legal rights app Lawya[i] in June, one in three furloughed workers were pressured by their employers to continue working for them and this ranged from being asked to check emails, to attending their physical workplace and, being pressured to ‘volunteer’ their time. In July, the Policy Exchange think tank warned that furlough fraud – whether genuine mistakes or wilful deception – could cost the exchequer between £1.3bn and £7.9bn[ii]. According to HMRC last month, the rate of fraud and error with regards to the furlough scheme currently sits between five and ten per cent and could total £3.5b[iii]; the tax body is currently investigating thousands of claims made via its hotline by whistle-blowers.
Furlough fraud in corporates – where organisations have claimed furlough monies, whilst still having employees working in some shape or form – is a big focus for HMRC right now, though it will unlikely have the capacity to fully investigate every suspected instance. There is a possibility that some organisations have been doing this as a firmwide activity, but it’s also possible that there have been rogue departments within companies that have been wrongly claiming grants under the radar, which – if uncovered by a whistle-blower – can lead to the company coming under investigation for fraud, particularly if it is suspected by HMRC as a “high risk” case.
Although a number of companies will have been deliberately fraudulent in claiming under the Coronavirus Job Retention Scheme, the complexities of the rules and guidelines mean that many employers will have simply made mistakes throughout this period, including simple admin errors like miscalculating hourly pay or mistakes in relation to holiday periods. Nevertheless, businesses that have wrongly claimed – even if accidentally – must notify HMRC within a 90-day window of receiving the grant and ahead of the 20 October amnesty or else risk a penalty charge. If these businesses report to HMRC under the amnesty, they will have to repay their funds, however, businesses that have made genuine mistakes will not be penalised in the long run. In the hope that employers will confess to overpayments sooner rather than risk a full investigation further down the line, HMRC says it has made the process of repaying the wrongly claimed money ‘as easy as possible’. Those who have committed fraud wilfully on the other hand, face prosecution and penalties and have little defence.
The amnesty has been introduced so businesses that recognise they have done something wrong throughout the duration of the furlough scheme can come forward to declare their errors so as to avoid criminal investigation and being treated as fraudulent, even if they have made a mistake.
In addition, if a company is found guilty of furlough fraud this could give rise to a penalty of up to 100% if the error was deliberate and concealed. The business will also face reputational damage, therefore, it is important that companies carry out a self-audit and notify HMRC as soon as possible and before the 20 October amnesty. HMRC does recognise that the furlough scheme is a new and unfamiliar system where human error is bound to result in some cases of mistakenly claimed funds and that these instances do not mean companies have sought to defraud the government. As with any disclosure to HMRC, a full and early disclosure[iv] of mistakenly claiming money from the furlough grant will influence the amount of penalty the regulatory body seeks in the investigation.
Companies now have only a few days to admit their mistake to HMRC and, although HR departments and company directors should carry out a full audit themselves to identify mistakes, seeking professional legal advice is recommended as soon as companies spot any irregularities. If a company suspects a significant mistake has been made following a self-audit, engaging with a legal team has the advantage of obtaining expert guidance in this complex area from legal experts who will not only be able to identify problems much faster, but they will suggest the best ways to navigate the issue whilst at the same time as ensuring communications are protected by legal privilege.
Company directors have a wide range of responsibilities under statute, regulation and the common law. With mistakes made regarding claiming furlough monies, directors should ensure that they understand the risks and implications by talking to a specialist quickly – it is crucial to involve lawyers and other professionals early to ensure that companies understand their duties and risk of liability. Otherwise, directors could even be at risk of being subject to criminal action and disqualification proceedings. Though companies that have made genuine mistakes will be faced with understanding when reporting to HMRC in light of the complexities of the scheme, legal representation is advised to ensure employers are aware of their rights and assist HMRC in their investigation, but without inadvertently making costly admissions and harming their own defence.
If your organisation is under investigation by a regulatory authority in connection with an alleged fraud, Walker Morris can advise you at every stage of the process. For information on how Walker Morris can advise your business, get in touch with the team – Gwendoline Davies, Andrew Northage and Gawain Moore.