3PB’s Max Schofield issues new briefing to employers about challenging HMRC on furlough payments

3PB’s tax and commercial litigation barrister Max Schofield has issued a briefing, in tandem with employment barrister Daniel Barnett from Outer Temple Chambers, aimed at UK employers who face difficulties with their Coronavirus Job Retention Scheme payments from HMRC.

The briefing comments that, whilst “everyone appreciates that the Scheme is being introduced in difficult and time-pressured circumstances… various iterations of the Guidance were released by HMRC before they even had any legal power to administer the Scheme. This has led to information changing and a possibility of employers being unfairly treated.”

The briefing advises that “if HMRC have contravened their Guidance on which an employer relied, an appeal lies by way of judicial review for legitimate expectation. If HMRC make a decision on whether an employee has been furloughed or whether a claim is brought abusively or contrary to the purpose of the Scheme, a claim for a judicial review on the basis of irrationality will be possible.”

The two barristers predict that UK employers will almost certainly challenge HRMC as furlough payment claims begin to be rejected or payments are delayed. Frustration, complaints and judicial review claims are a certainty.

If any solicitors, or employers, would like bespoke advice and assistance with pursuing a judicial review, possibly as part of group litigation, please contact 3PB's Commercial Practice Director, David Fielder by emailing him on david.fielder@3pb.co.uk.

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