04:17, May 03 168 0 theguardian.com

2020-05-03 04:17:04
Furloughed from work? It pays to know your rights

Until the coronavirus rampaged through the economy, “furlough” was an unused term in UK employment law. Now it’s a legal lifeline for businesses in lockdown.

Under the Coronavirus Job Retention Scheme (CJRS), the government will pay 80% of employee wages up to £2,500 a month, plus employer National Insurance and pension contributions. For companies, it means they can retain their workforce while they are unable to trade; for employees it means effective paid gardening leave, albeit with a hit to their income if their employer can’t top up the government grant.

The scheme opened on 20 April and 67,000 claims were lodged within 30 minutes. However, the complex and evolving bailout rules have left many confused as to their rights.

The Observer has put some of readers’ questions to Julia Wilson, an employment specialist at the international law firm, Baker McKenzie.

My employer is requesting that all furloughed staff check in with their line manager every week, undertake online training and report back on what they’ve achieved. I am a furloughed manager and this will require me to continue providing employee support, plus researching appropriate online training for them. Is an employer allowed to require their employees to take on training and, if I do as requested, would I be jeopardising furlough pay by doing work?

Your employer is, indeed, risking disqualification from the government grant since it’s asking you to perform regular services while on furlough. This is not permitted. Training is allowed, but only if it does not provide services to, or generate revenue for, the employer. It must also be directly relevant to an employee’s role and must be first agreed between the employer and the employee.

The approach being taken by your employer doesn’t appear consistent to this. Your employer’s requests are probably well-intentioned to keep staff morale and motivation going, but if their actions disqualify them from a grant under the CJRS, you should still be entitled to furlough pay as it’s one of the conditions of the scheme.

My partner has been furloughed from his job as a delivery driver at a builder’s merchant, but staff may be asked to return on rota after the minimum three-week furlough period is up. Can he be forced to return? We are concerned that the company is overstepping the guidelines by delivering non-essential supplies to customers which will put him at risk.

The simple answer here is that the employer is allowed to ask your partner to return to work, and he will not normally have the right to choose or refuse. Employees can be rotated on furlough (three weeks on, three weeks off) or brought back to work as normal if the demand for work is there. Your partner should think carefully before refusing to return to work, as that could be treated as unauthorised absence. If he has serious health and safety concerns then he could refuse to work whilst the concerns are addressed - he should raise those so that his employer can respond.

However, the fact that an employer has decided to stay open for business is not likely, by itself, to create the sort of health and safety concerns that would allow your partner to refuse to work. The government has published detailed guidance on social distance, shift-working and staggering processes that will support businesses to remain open for business safely. That includes specific guidance for delivery drivers.

My partner started his new retail job on the 1 March and worked there full time for three weeks until the shop closed due to the pandemic. However, the furlough scheme only applies to those who were employed up until 28 February. We will be unable to stay in our flat as universal credit does not come close to covering his share of our rent. It seems ludicrous that 24 hours has meant the difference between a supporting wage and almost nothing.

Your partner was in the same boat as an estimated 200,000 others who were left with no support because they’d just changed jobs, which is why the Treasury has now extended the cut-off date to 19 March. To qualify, the employee must have been on the PAYE payroll on or before 19 March so if your partner had been paid by that date he would certainly be eligible. If not, it’s less clear cut. However, new guidance permits employees who had left jobs to work elsewhere after the cut-off date, to be rehired and furloughed by their former employers.



The decorating company I work for is now re-opening all stores and staff, who had been furloughed until the end of June, have to decide whether to return to work for a non-essential service or take unpaid leave. The company will only now furlough those who can provide evidence of their own or a household member’s risky health condition. I live with someone who meets the vulnerable criteria, but because they haven’t received a letter confirming this, I’m being forced to put theirs and my health at risk as I can’t afford to take unpaid leave.

Unfortunately, there is no right for any employee to be furloughed, regardless of their personal circumstances. Your employer is acting reasonably in seeking to safeguard those at risk while trying to keep the business going. The issue seems to be that the person you live with has not received a letter confirming that they are at risk. This is an issue you need to raise with your local authority or their GP. If you have concerns about health and safety you should raise these with your employer, and if you believe there is a serious and imminent danger where you work you can remain at home until it is resolved. However, your employer’s decision to re-open or end furlough, by itself, is unlikely to count as such a danger.

I work for a digital agency where my boss has placed employees from the design, development and accounts departments on furlough. However, I spotted on a local jobs page they are actively currently looking to hire a new developer. Is this allowed?

There is nothing in the government guidance which prevents an employer from recruiting for new positions. The job may be a different role, skill set or one due to start when the furlough period ends, which would be fine. However, if they’re seeking someone to fulfil the role of a furloughed employee but on lower pay, that feels wrong and HMRC may decide the company had abused the scheme should it decide to audit its use of it.

My employer went into administration on 25 March and I was made redundant. The government furlough guidance promisingly said that the administrator will be able to access the CJRS, but the administrators say that it only applies to companies with an active payroll and, since it has not been possible to sell the business, we don’t qualify.

The government guidance has been a little unhelpful on this. It starts promisingly, as you say, but it goes on to say that administrators should only apply to the scheme if there is “reasonable likelihood” of rehiring the workers. The implication is that administrators should not be using the scheme where there is no realistic prospect of a sale.

This does seem to produce an unfair result - the government employee guidance allows an employer to make an employee redundant whilst on furlough, but in the case of administration a different standard is applied. The government hasn’t explained the rationale for this.

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