Further to this update, the goal posts have moved again. In the latest gov.uk guidance (there have now been 6 updates since the guidance was first published on 26 March 2020) there is a clear statement that although a written record of furloughing is required, as long as furloughing is done in a way that is consistent with employment law, the employee does not have to provide a written response or written agreement to being furloughed and not working (although clearly they must not do any work).
The key wording in the guidance is:
“To be eligible for the grant employers must confirm in writing to their employee confirming that they have been furloughed. If this is done in a way that is consistent with employment law, that consent is valid for the purposes of claiming the CJRS. There needs to be a written record, but the employee does not have to provide a written response. A record of this communication must be kept for five years.” (emphasis added)
This guidance does contradict the furlough direction, which in theory carries more weight than the guidance on gov.uk, but it seems unlikely, given the guidance, that HMRC will take a literal interpretation of the direction to disqualify employers from receiving a CJRS grant where they have notified employees in writing that they are furloughed but have not obtained written agreement to furloughing from employees.