The recently announced Coronavirus Job Retention Scheme (the Scheme), otherwise known as furlough leave, has received a lot of press recently with many employers taking advantage of the Scheme. However, many questions remain unanswered, which we are attempting to address on a regular basis. One of the more frustrating questions, which appears to remain unanswered with any clarity or authority, is whether employees who are on furlough leave can also take annual leave.
Taking annual leave during furlough leave
The general view appears to be that an employee on furlough leave can take annual leave at the same time. Why they would choose to do so, however, is unclear. More significantly, an employer can require an employee to take annual leave. An employee on furlough leave could be required to take annual leave to ensure that it does not continue to accrue during this time, which would otherwise be the case.
The recent update from Acas suggests that it is impractical to take leave whilst on furlough and HMRC has not issued any authoritative guidance on this point.
What is clear is that if an employee does take annual leave whilst on furlough and they were being paid at 80% of rate of pay, this should be topped up to their normal pay during annual leave.
Can you take up another job during furlough leave?
Another question which has been clarified over the weekend is that an employee can take up another job with another employer whilst on furlough leave. This would appear to be inconsistent with the underlying rationale of the Scheme, which is to allow employees to be paid and restrict movement as well as maintain social distancing. However, other commentators have suggested that certain types of work need to be done, such as crop picking, and it is difficult to secure people to do this work as a lot of these workers have been repatriated during the current crisis. In theory, an employer would still need to give consent to a furloughed employee taking up work elsewhere but this is unlikely to be refused. Employers would normally only refuse consent to workers or employees taking up other work if it conflicted with their own operations. This does mean, however, that a furloughed employee could in theory receive 180% of their salary during furlough leave if they take up a full-time job elsewhere.
The rules of furlough
One of the clear rules about furlough leave is that an employee cannot do any work which generates revenue or provides services to the employer. There appears to be no exception to this, which does cause some practical difficulties where furloughed employees may need to be contacted to provide clarification on matters. For example, a furloughed solicitor who has passed on a case load to another member of the team may need to be contacted to provide an effective handover and, therefore, maintain service to the client. Under furlough, such contact and assistance would be prohibited.
In another example, a restaurant which has closed and furloughed all its staff has decided to re-open so that staff can volunteer to cook meals for NHS and other key workers. Are these staff then breaching their furlough conditions by providing a service, even if this is not to their employer? Some would suggest that this is a breach of furlough, and it remains to be seen what view the HMRC would take when it starts to make payments under the Scheme.
At the moment, the Scheme is not yet fully set up to make payments and it is anticipated that this will still take several weeks.
At Winston Solicitors we will continue to bring you further updates and hopefully provide answers to questions around this entirely new area of employment law.
For further advice on this or any other employment law matter please contact Paul Grindley at PaulG@winstonsolicitors.co.uk or call 0113 320 5000
