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14 August 2020

Coronavirus Job Retention Scheme from 1 March to 31 October 2020

Since the Chancellor’s announcement on 20 March that the Coronavirus Job Retention Scheme (the Scheme) would be introduced to help support business and protect jobs during the COVID-19 pandemic, there have been several updates to the various guidance notes the government has produced (together the Guidance) which is available here, as well as three Treasury Directions available here. The Treasury Directions give HMRC authority to operate the Scheme, and provide a framework for how it is managed. This has been an evolving Scheme, but it is now clear it will close on 31 October 2020. 

There are significant modifications to the Scheme from 1 July 2020 onwards including new flexibility to bring furloughed staff back to work on a part time basis, whilst allowing employers to claim under the Scheme for hours not worked. Additionally, the Scheme will taper from 1 August 2020. This will initially require employers to contribute to the costs of national insurance and pension contributions of furloughed workers, but from 1 September 2020 onwards employers will also be required to contribute to furloughed workers’ wages.

1. Overview of the Scheme

  • The Scheme is open to all UK employers (including charities, recruitment agencies and public authorities) which had created and started a PAYE payroll scheme on or before 19 March 2020, have submitted a report under the Real Time Information (RTI) reporting system for employees claimed for and have a UK bank account. 
  • The Scheme is also open to employers of employees transferred to them under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) after 28 February 2020.
  • The Scheme operates from 1 March 2020, with a modified version of the scheme in place from 1 July 2020 until the end of October 2020.
  • The Scheme according to the Guidance offers employers who cannot maintain their workforce because their operations have been affected by the COVID-19 pandemic temporary contributions towards wage costs. The first two Treasury Directions provide for payments to be made for the costs of employment arising from the health, social and economic emergency arising from the pandemic which appears to be wider in scope than the Guidance. However, the Third Treasury Direction appears to change the purpose of the Scheme with the aim being to continue the employment of employees. It is not clear how significant this change is and in particular if it has an impact on whether the Scheme covers the notice period of those terminated while on furlough. 
  • To be considered furloughed up to the end of June, the employees must not have worked at all for the organisation whilst on furlough, or any linked organisation, but will remain ‘on the books’. This means they must not provide services or generate revenue for or on behalf of the employer (or any connected organisation). 
  • To be eligible for the grant the employers must have agreed with their employees and confirmed in writing (or reached a collective agreement with a trade union) that they have been furloughed and keep a written record of the agreement for 5 years.    
  • Up until 30 June, the minimum length of time an employee could be furloughed for was 3 weeks and therefore the last date which an employee could be furloughed for the first time was 10 June 2020. Furlough leave can be rotated and employees can be furloughed multiple times, provided that prior to the end of June this was always for a minimum of 3 weeks. 
  • Where a previously furloughed employee starts a new furlough period before 1 July, this must be for a minimum of 3 consecutive weeks.
  • From 1 July employers can bring furloughed employees back to work for any amount of time, on any work pattern while still being able to claim the grant for the hours not worked that they would normally have worked.
  • Furloughed employees retain the same employment rights as non-furloughed employees, including in respect of unfair dismissal, discrimination, redundancy payments and statutory payments such as statutory sick pay and maternity rights and other parental rights.    
  • Up until the end of July 2020 HMRC will pay 80% of a furloughed worker’s gross monthly wages directly to employers by way of a grant subject to a cap of £2,500 per month. Employers can choose to top up the grant, but have no obligation to do so (although they must validly vary the employees’ contracts if they do not top up the pay).
  • From 1 August 2020, employers will be required to pay all employer NICs and pension contributions, then from 1 September 2020 employers will also be required to contribute 10% of furloughed employees’ wages increasing to 20% of furloughed wages from October 2020.
  • Employees on all categories of visa can be furloughed and the grants under the Scheme will not be classed as “public funds”.
  • When the Scheme ends, the employer will need to assess at that point whether to bring the employee back to work to their full hours or, depending on the circumstances, make them redundant. Grants cannot be used to subsidise redundancy payments. 
  • HMRC states that it retains the right to retrospectively audit all aspects of any claim. It will also withhold payments or require them to be paid back if a claim is found to be fraudulent or based on incorrect information.

2. Who can claim?

  • All UK businesses, including charities, recruitment agencies and not for profit organisations, will be eligible to apply for grants.
  • Administrators will be able to access the Scheme but the government only expects them to do so if there is a reasonable likelihood of rehiring workers.
  • Individuals can furlough employees, such as nannies, provided they are paid through PAYE and they were on the payroll on or before 19 March 2020 (and a Real Time Information (RTI) submission had been made in relation to them on or before that date).
  • The government expects that the Scheme will not be used by many public sector organisations. Where employers receive public funding for staff costs, and that funding is continuing, the government expects employers to use that money to continue to pay staff and not to furlough them. 

3. Who can be furloughed?

  • To qualify for the Scheme, in addition to the eligibility requirements below, the employee must have been furloughed for at least 3 consecutive weeks between 1 March and 30 June. 
  • The Scheme applies to employees on PAYE payroll on 19 March 2020, and who were notified to HMRC on an RTI submission on or before that date. 
  • Employees who were made redundant or stopped working for the employer after 28 February 2020 or after 19 March can be re-hired and put on furlough provided they were on the RTI on or before 28 February or 19 March respectively. The Scheme does not address whether the re-hire needs to be on the same terms and retrospectively reinstated from the date their employment ended. It also does not address the status of any redundancy payment already made to them. It therefore seems open to the employer to ensure a break in statutory continuity of employment and possibly offer a shorter notice period.
  • The Scheme also applies to employees who have been transferred under TUPE after 28 February 2020, although it is unclear whether this applies where the transfer is a service provision change.
  • A new employer is also able to claim in respect of employees who transfer under TUPE after 10 June, provided they have been furloughed for a period of at least 3 consecutive weeks between 1 March and 30 June by their previous employer.
  • Eligible employees can be on any type of contract including full-time, part-time, agency, flexible or zero-hours contracts. Foreign nationals are eligible to be furloughed.
  • Fixed-term employees can be furloughed and their contracts can be renewed or extended during furlough without breaking the terms of the Scheme. They can also be re-hired and furloughed if their contracts expired after 28 February or after 19 March provided they were on the relevant RTI on or before 28 February or 19 March. 
  • The Guidance states that an employee whose unpaid leave began before 28 February cannot be furloughed until after the date they were originally due to return. The employee must still have been furloughed for 3 weeks prior to 30 June 2020. An employee who had been placed on unpaid leave after 28 February would have been eligible to be put on furlough provided this was for a minimum of 3 consecutive weeks between 1 March and 30 June. 
  • If an employer wants to furlough employees, for business reasons, who are currently off sick, the Guidance says they can do so. Those employees should no longer receive sick pay and would be classified as a furloughed employee.  The Second Treasury Direction states that employees off sick cannot be furloughed before the end of their sickness period but an employer and employee can agree when that period ends.
  • The Guidance states that employees who are shielding in line with public health guidance can be placed on furlough leave. Alternatively, it is also possible to put shielding employees on SSP from 16 April when the SSP provisions were changed to bring shielding employees within their scope.  However, shielding employees will no longer be covered by SSP from 1 August when shielding is set to be “paused”.
  • Employees with caring responsibilities resulting from COVID-19 can be furloughed. The Guidance gives the example of employees that need to look after children.
  • Apprentices can be furloughed and can continue to train provided they are paid at least Apprenticeship Wage, National Living Wage or National Minimum wage during time spent training.
  • Individuals who are not employees can be furloughed if they are paid via PAYE e.g. office holders (including company directors), salaried members of LLPs (if they are designated as employees for tax purposes under taxation provisions), agency workers (including those employed by umbrella companies) and limb (b) workers. There is further guidance for these individuals on particular requirements applicable to their roles e.g. directors can continue to perform their statutory duties but not any work.   

4. Who cannot be furloughed?

  • Employees who have not been furloughed for 3 consecutive weeks between 1 March and 30 June although there is an exception for parents returning from maternity or similar leave and military reservists.
  • Employees hired after 19 March 2020.
  • Employees that started and ended the same contract between 28 February 2020 and 19 March 2020. 
  • Employees on the two weeks compulsory maternity leave after birth.
  • The self-employed (for whom a separate scheme applies) including a limb (b) worker who is not paid through PAYE. 
  • Employees who are on SSP. 

5. What furloughed workers can and cannot do

Furloughed workers can:
  • Take part in volunteer work.
  • Undertake training and should be encouraged to do so.
  • Continue working in a second job they already have.
  • Take part in disciplinary or grievance proceedings although advice should be sought on the particular role undertaken to ensure this could not be construed as providing a service to the employer.
  • If their employment contract permits, take on a new job, provided they are able to return to the employer as soon as furlough ends and also to participate in any training needs of the original employer.
  • If they are union or non-union representatives they may undertake duties and activities for the purpose of individual or collective representation of employees or other workers provided that while doing this they do not provide services to, or generate revenue for, the employer or any linked organisation.
Furloughed workers cannot:
  • Do any work which provides services or generates income for the organisation which has furloughed them, or any linked organisation during their furlough hours.
  • This does not prevent them working under flexible furlough arrangements provided they are not working during their furloughed hours.

6. How 80% of wages costs is calculated?

  • The Guidance states that employers will be able to claim the lower of 80% of the employee’s “regular wage” or £2,500 plus the associated Employer National Insurance Contributions and minimum auto-enrolment employer contributions on that subsidised wage.
  • For full-time and part-time salaried employees the employee’s actual gross salary (as in their last pay period prior to 19 March 2020) before tax is used.  If however, based on previous guidance, the employer has calculated their claim based on the employee’s salary as at 28 February and this differs, it can still be used for the first claim.
  • For employees whose pay varies, the claim will be for the higher of:-
    • the same month’s earnings from the previous year, or
    • the average monthly earnings from 2019-2020 tax year. 
  • If they have been employed for less than a year, the employer can claim for 80% of their average monthly earnings since they started work until the date they are furloughed. If they have worked less than a month, work out a pro-rata for their earnings so far, and claim 80%.
  • Employers can claim for any regular payments they are obliged to pay their employees which includes wages, non-discretionary overtime, non-discretionary fees and compulsory commission payments. Discretionary bonus (including tips), commission payments, non-cash payments and non-monetary benefits should be excluded. 
  • As stated above, the reference salary should not include the cost of non-monetary benefits including taxable benefits in kind.  Nor should it include benefits provided through salary sacrifice schemes (including pension contributions) that reduce an employee’s taxable pay.
  • Employees remain liable for their own tax and employee NICs. 
  • As fully furloughed employees are not working, it does not matter if the 80% calculation takes them below national minimum wage (NMW) based on their usual working hours. However, if they are required to complete training whilst furloughed, they must be paid at least NMW for time spent training, even if this is more than 80% of their wage that will be subsidised. 
  • The Guidance states that salaried employees returning from family-related leave, or sick leave should have their furlough pay based on their usual salary, not the pay they received whilst on leave. However, for those on variable pay, the calculation set out above is not adapted for those who have been absent.  This has the potential to lead to discrimination if someone loses out substantially as a result, and it is hoped the Guidance will be reviewed on this. We would advise employers to follow the guidance for variable paid employees, discounting the period of family leave, in the circumstances to mitigate the risk of a discrimination claim

7. 20% top-up

The Guidance states that employers can “choose” to fund the difference between normal salary and value of the grant, but do not have to do so:

  • The change to furloughed status remains subject to existing employment law and existing contractual rights under the contract of employment. 
  • Employers must reach and record agreement with furloughed employees to waive all or part of the excess over the value of the grant.
  • If the employer chooses to top up, the employer NICs and auto-enrolment pension contributions in respect of the top-up amount will not be funded through the Scheme. 
  • If an employer does choose to top up the employee remains under the obligation not to work or provide services for the business.

8. Calculating the pay of flexibly furloughed staff

  • The employer must pay normal wages for the hours worked by a flexibly furloughed employee.
  • In calculating the amount due under the Scheme, this will be a proportion of the pay due for the unworked hours (i.e. the furloughed hours) of the employee.
  • For example, an employee who normally works 5 days but is furloughed for 2 days a week and works 3 days a week will receive 3/5ths of their normal salary from their employer. The cap is still £2,500 until August 2020 and therefore 2/5ths of the cap is £1,000. So, for the 2 days they are furloughed, the employee will claim a grant of the lower of 80% of 2/5ths of their normal salary or 2/5ths of the cap (i.e. £1,000).
  • There are detailed examples in the Guidance and the third Treasury Direction of the calculations needed to work out the usual hours and furloughed hours of an employee (based on whether they have fixed or variable hours) and how much can be claimed. 

9. Making the claim

  • Information about the furloughed workers and their earnings must be submitted to HMRC through the online portal.   
  • If the employer has fewer than 100 furloughed staff they will have to enter details of each employee they are claiming for directly into the system. If they have 100 or more furloughed staff, they will be asked to upload a file with the information.
  • For claim periods up to 30 June 2020 grants can be backdated to 1 March 2020. The claim should be started from the date the employee finishes work and starts furlough, not the date when the decision is made or when the employer writes to them to confirm their furlough status. However, this is different from 1 July where an agreement has to be in place before the claim is made. 
  • The claim should be made using the amounts in the employer’s payroll either shortly before or during running payroll. 
  • Employers must keep a copy of all records for 6 years including the amount claimed and claim period for each employee, the claim reference number, their calculations in case HMRC need more information, usual hours worked and actual hours worked for flexibly furloughed employees and any calculations that were required. 

10. Claim period

The updated Guidance contains a new section dealing with the length of the claim period, which is made up of the days the employer is claiming a grant for as this is changing from 1 July. 

  • For claim periods that end on or before 30 June, there is no maximum length.
  • Employers have until 31 July to make claims for claim periods up to 30 June.
  • The number of employees that employers can claim for in any single claim period cannot exceed the maximum claimed for under any claim ending 30 June. There are exceptions to this cap where parents are returning from any maternity or similar leave, or following a TUPE transfer.
  • Claims starting before 1 July must end on or before 30 June. Where a furlough period straddles June and July a separate claim will need to be submitted to cover the period up to 30 June and the days in July even if employees are furloughed continuously.
  • Claim periods on or after 1 July must start and end within the same calendar month and must last at least 7 days unless the employer is claiming for the first few days or last few days in a month.
  • Employers should match the claim period to the dates the employer processes its payroll if possible.
  • It is only possible to make one claim for any period. Therefore all furloughed or flexibly furloughed employees must be included in one claim even if they are paid at different times.
  • Claims cannot overlap and claim periods must follow on from each other with no gaps where employees are furloughed or flexibly furloughed continuously (or both).
  • Employers can make the claim up to 14 days before the claim period end date.
  • When claiming for employees who are flexibly furloughed, the employer should not claim until it is sure of the exact number of hours they will have worked during the claim period. 
  • Payments will be made 6 working days after the claim is made.

11. Errors when claiming

The Guidance now includes information about how the employer should deal with an overpayment or an underpayment. In the case of overpayments it will be possible to make an adjustment when making the claim and a record should be kept of this for six years. In the case of under-claimed amounts, employers should contact HMRC to amend the claim who will conduct additional checks.

12. Holiday

  • The Guidance makes clear that holiday continues to accrue during furlough, and employees can take leave whilst on furlough. If an employee is flexibly furloughed then any hours taken as holiday during the claim period should be counted as furloughed hours rather than working hours. Employees should not be placed on furlough for a period simply because they are on holiday for that period.
  • The Guidance says that holiday pay should be “at your normal rate of pay” calculated in accordance with the Working Time Regulations 1998 (the WTR). Employers are obliged to top up the Scheme payments to usual pay.
  • What amounts to “normal rate of pay” may vary depending on whether permanent contractual pay reductions have been agreed, or whether the pay variation is only for the duration of the Scheme. 
  • The government has also amended the WTR to allow the carry-over of up to four weeks’ (rather than the full 5.6 weeks) statutory leave for the next two leave years, where it is not reasonably practicable for employees to take some or all of their holiday entitlement due to coronavirus.
  • On 13 May the Government produced guidance which seeks to explain how holiday entitlement and pay operate during the pandemic. It addresses the position both of workers who continue to work and those who have been placed on furlough.  

13. Sickness

  • The Guidance states that if an employee is on sick leave or self-isolating as a result of Coronavirus, they will be able to get SSP, subject to the usual eligibility requirements. Further changes to the SSP regime on 16 April have brought those who are shielding within the SSP provisions.   
  • The Guidance also states that short term illness/self-isolation should not be a consideration in deciding whether to furlough. If, however, employers wanted to furlough employees for business reasons on or before 10 June who were off sick, they could still furlough them. The option to move onto furlough is no longer available for those who do not have 3 consecutive weeks of furlough prior to the end of June. 
  • The Guidance states that employees on long term sick leave or who are shielding can also be furloughed. It is for the employer to decide, subject to the requirement that they have at least 3 consecutive weeks furlough prior to the end of June. The government has announced, however, that shielding will be “paused” from 1 August 2020. Employers of shielding employees will need to consider various options after this date including continuing furlough or return to work depending on the particular business and the individual’s job and circumstances.  
  • The Guidance states that it is up to employers to decide whether to move employees who have been furloughed and become sick onto SSP, or keep them on furlough at their furloughed rate. If a furloughed employee moves onto SSP employers can no longer claim for their furloughed salary. In most cases, the reality is that someone on furlough leave is unlikely to tell their employer they are sick as the payments while being furloughed are likely to be substantially more than SSP.
  • Sickness while on furlough leave is more likely to be an issue if the employer has a generous contractual sick pay scheme where there is the incentive to notify the employer. It seems clear that a furloughed employee who is moved onto sick pay provisions cannot be claimed for through the Scheme. One option to ensure this does not become an issue would be for the employer to provide in the furlough agreement that enhanced sick pay does not apply during furlough leave.
  • The other practical issue for the employer, if it is unaware that an employee is sick, arises where they are rotating staff or on giving notice to return to work.  The employer will not know the employee is sick until they are due to return.  However, it should be noted that employees are usually required to notify their employer when they are sick and it should be for the employer to decide whether to keep them on furlough or move them onto SSP. 

14. Maternity and other parental rights

  • An employee cannot be furloughed during the two week compulsory maternity leave
  • Eligibility for SMP is unchanged. The government has made amendments to the SMP regulations with effect from 25 April 2020 so that normal weekly earnings are to be calculated as if the employee had not been furloughed.
  • If the employer offers enhanced contractual pay to women on maternity leave, the guidance states that the enhanced rate is included as wage costs that can be claimed through the Scheme. This implies that a woman on maternity leave may wish to be furloughed in order to claim an amount higher than the rate of SMP. It is unclear but the guidance appears to suggest that she can be on maternity leave and also be furloughed. 
  • An employee whose maternity leave started before 10 June 2020 and who returns after that date can be furloughed for the first time provided they were on PAYE payroll on or before 19 March 2020, an RTI submission was made on or before 19 March 2020 in respect of them and their employer has already submitted a claim for any other employee in the organisation for three consecutive weeks between 1 March and 30 June. This exemption applies to employees returning from any other statutory parental leave.

15. Employer pension contributions

  • The Pensions Regulator has issued separate guidance on the payment of automatic enrolment pension contributions and the Scheme. 
  • No payments above the minimum employer auto-enrolment contributions will be met by the Scheme and therefore contractual variations may be required in the furlough agreement if employer pension contributions are reduced. It may also be necessary to amend the pension scheme rules. 
  • Employers with at least 50 employees would normally have to conduct a 60 day consultation process to reduce employer pension contributions.  Employers who do not comply face sanctions. In its guidance, the Regulator has stated that it will not take enforcement action for failure to comply with consultation requirements if:
    • the reduction in employer pension contributions applies only to staff who are on Furlough Leave,
    • the employer is making a claim under the Scheme, and
    • the employer has informed affected employees of the changes.   
  • Employers are encouraged to carry out as much consultation as possible.  Obtaining employee agreement to any reduced employer pension contributions where possible would therefore be prudent.

16. Notice of dismissal and redundancy payments

  • A key issue which needed to be clarified was whether an employer could claim the grant in respect of the period where employees are under notice of dismissal.  Both the Guidance and the first two Treasury Directions were silent on this.  However, the Government made it clear in updated Guidance in July that employers can continue to claim for a furloughed employee who is serving a statutory or contractual notice period. 
  • However, employers cannot use furlough payments to subsidise statutory redundancy payments.
  • New provisions came into force on 31 July to ensure furloughed employees who are made redundant receive statutory redundancy payments and statutory notice based on their pay levels disregarding any reduction as a result of being furloughed.  Whilst the legislation is complex and subject to various qualifications, the key points are that the statutory cap on a week’s pay still applies to statutory redundancy payments and the notice provisions do not apply where the employee is entitled to contractual notice of at least one week more than the statutory minimum entitlement.

17. Agreeing furloughed and flexibly furloughed status

Changing the status of employees to exclude them from work and reduce remuneration remains subject to existing employment law. Employers will therefore need an express right to make such changes or, more likely, require consent:

  • Few contracts contain an express right to change status or lay off employees for whom the employer has no work. Therefore, unless such a right exists, employers will need to agree the change, or introduce it on notice.   
  • The Guidance and the Treasury Directions provide that the employer and employee must have agreed or the employer confirmed in writing that the employee will do no work or, in the case of flexibly furloughed employees, will not work the full amount of the employee’s usual hours in relation to their employment.  
  • A collective agreement reached between the employer and a trade union is also acceptable for the purpose of the Scheme. 
  • The agreement must specify the main terms and conditions on which the employee will do no work or not work the full amount of their usual hours. 
  • The First and Second Treasury Directions allowed for retrospective claims.  It is clear that under the Third Treasury Direction that from 1 July any agreement must be made before the beginning of the period to which the claim relates.  However, the agreement may be subsequently varied to reflect any variations agreed during the period to which the claim relates.
  • On a practical level, ideally furlough arrangements would be agreed in writing by employees (this can be by email), but where this has not proved practical, provided employment law considerations are met, the claim under the Scheme should be valid. If HMRC fail to take a practical approach this will undermine the purpose of the scheme: to protect jobs.
  • In practice, in current circumstances, most employees are likely to agree to accept furlough leave in any event.
  • The Guidance states that if 20 or more staff are affected it may be necessary to engage in a collective consultation process to procure agreement. A formal collective process is engaged if an employer proposes to dismiss at least 20 employees within a 90 day period from one establishment in order to vary contract terms. In the current climate, most employers will seek voluntary agreement with employees. In reality most employees will consider it more attractive to accept the change to be furloughed than face redundancy. Specific legal advice should be sought on handling agreements to vary the contract, particularly given the need for urgent change with which most employers are faced.  
  • Merely imposing the change will expose the employer to the risk of employees resigning to claim wrongful dismissal and (for those with two years’ qualifying service) unfair dismissal (as well as the issues of agreement in writing now required by the Direction). Alternatively, employees could refuse to accept the change, continue in employment under protest and later claim damages or an unlawful deduction of wages to recover the balance of their contractual salaries.
  • The flexible agreement can last any amount of time and the flexible furlough arrangement can be agreed more than once i.e. it is possible to rotate.  Although the arrangement can last any amount of time, the minimum period it is possible to claim for is 7 calendar days.
  • A written record of the agreement must be kept for 5 years until 30 June 2025. 
  •  Employers must also keep records of how many hours their employees work and the number of hours they are furloughed. 

18. Non-furloughed workers

Only employers can apply for grants to pay the wages of furloughed workers:

  • Employees cannot demand to be furloughed without their employer’s agreement.
  • Selection of furloughed, retained and redundant employees could cause resentment within the workplace e.g. from employees who are retained, while their colleagues are sent home and paid 80% of their wages without having to work at all.
  • The Guidance does not refer to any requirement to adopt fair criteria to make those decisions, but does acknowledge that these decisions will be subject to existing equality and anti-discrimination law.
  • The Guidance states that employers are free to consider allocating any critical business tasks to staff that are not furloughed. However, employers should ensure that such duties fall within the scope of the duties which such employees are required to perform under their existing contracts. Otherwise, they must agree a variation.   
  • Employers may dislike rewarding, for example, half their workforce for no work at all (whilst perhaps continuing to accrue holiday) when they would prefer to have all their staff on half-time working. One possible solution would be to rotate workers on furlough, in order to treat all workers equally. However, it may be that such complexity proves administratively prohibitive for some employers.

In conclusion

Employers are well-advised to monitor the guidance from the government as well as ACAS, as both are being regularly updated and changed. Aside from the rapidly evolving legal position, effective communication and transparency are key for all employers when implementing a period of furlough. Open discussion, pragmatic solutions and, preferably agreement will be critical in using the Scheme to save businesses and reduce the risk of claims.

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