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FAQ on furlough

Posted on 26 November 2020

FAQ on furlough

Posted in Advice

The Government’s Job Retention Scheme to combat COVID-19 (known as furlough) will run until 31st March 2021. Despite a number of versions of the Government guidance and advice from all quarters, there is still some uncertainty over many key areas and issues faced by employers.

Some questions are easy to answer and some less so. We have set out below a number of questions which have been posed to us by clients in real life situations. We will continue to bring you updates as and when available.

Frequently Asked Questions

1. Question: Can I get funding for workers if they are still working but on reduced hours?

Answer: No. this is explicitly ruled out.

2. Question: Can we rotate employees on and off furlough?

Answer: Yes, as long as those who are furloughed are away from work for a continuous period of at least 3 weeks. Beyond that, workers can rotate between being furloughed and being at work. This means that you could furlough a worker for 3 weeks, then recall into work for as many weeks as you like, before furloughing again for another 3 weeks. To dispel any confusion, the 3 week period applies only to the furloughed period and not to a period back at work.

3. Question: Can a worker refuse to be furloughed?

Answer: Yes. In practice, if this happens, they are likely to be made redundant and the usual redundancy process should be followed.

4. Question: Can I furlough staff if I cannot afford to pay them until I receive the grant?

Answer: Yes. You would, however, need to agree with the employee concerned that their salary is deferred until you receive the grant and can then pay them. This agreement ought to be in writing.

5. Question: Can I make a furloughed employee redundant?

Answer: Yes, although you must follow normal redundancy procedures including consultation and fair selection. If you decided to automatically select as redundant those on furlough without going through a proper selection process, you may be judged to have instigated an unfair selection process.

6. Question: What contact can a furloughed employee have with the organisation?

Answer: Whilst furloughed, staff are not allowed to do any work for that employer. They can still have contact, which can include attending virtual social events, being consulted on any changes and taking part in formal HR duties. In essence, they must not do any work for the employer which creates revenue or provides any service connected with the business.

7. Question: How can I recall an employee who has been furloughed?

Answer: The Government has not provided specific guidance on how to end a furlough period. An employer can simply require an employee “to come back” to work if they are required to, work from home, or simply return to work. This might include a reasonable period of notice so that the furloughed employee can change their personal arrangements if they have any caring obligations. In practice, however, there is no reason why they should not be able to return to work immediately.

8. Question: Do furloughed workers still accrue holiday?

Answer: Yes. All of their contractual entitlements remain the same and their holiday rights are included. Holidays during furlough and beyond will pose a challenge to many employers as the business begins to return to normal. Employers may wish to offer to buy back annual leave that is in excess of statutory leave. In addition, the regulations have been amended allowing those who cannot take their full annual leave because of COVID-19 to spread this out over the next 2 leave years. Employers should consider adapting or revising any holiday policy such as capping the amount of leave a worker can take over certain periods. Employers may justifiably tend to give preference when dealing with holiday requests to those who were working over those who were furloughed. There are no set rules on this and we would suggest that specific advice is taken in individual cases.

9. Question:What if a furloughed worker becomes sick?

Answer: There is no requirement for the employee who is furloughed to inform the employer that they are sick. In most cases, it will simply not matter as no practical difference will result. From a legal and technical point of view, it might be argued that it is not possible to be sick whilst furloughed, as the condition does not stop them from fulfilling their duties during that period. The worker would not be ready, willing and able to work when they are sick, but this is not relevant until the furlough period ends. The Government guidance indicates that it is up to employers to decide whether to move workers onto SSP or to keep them on furlough leave if they are sick.

10. Question: Can you furlough an employee who is already on maternity or parental leave?

Answer: Yes. The guidance states that normal rules for maternity and other forms of parental leave pay apply. An employer can, therefore, claim through the scheme for any enhanced maternity pay that is offered for a period of maternity or other parental leave subject to the £2,500 and 80% caps.

11. Question: Can employers place employees on long term sick leave on furlough leave?

Answer: The guidance suggests that employees who are on sick leave or self-isolating should receive statutory sick pay only but can be furloughed once they have recovered or are no longer self-isolating.

12. Question: Can an employee request that their employer puts them on furlough leave?

Answer: An employee can request this but the employer does not have to agree. It is the employer’s decision which employees to place on furlough leave. It is unclear whether refusing to place employees on furlough leave and making them redundant instead could amount to unfair dismissal.

13. Question: Where a worker does not take annual leave in the relevant leave year because they were on furlough leave, can they carry it forward to the next leave year?

Answer: The government has now passed emergency legislation relaxing the restriction on carrying over the 4 weeks statutory leave with effect from 26th March 2020. This will allow employees to carry over untaken leave up to 2 years.

14. Question: Can an employee work for another employer?

Answer: There is nothing in the current guidance which suggests that the employer will only be able to access the reimbursement if it makes it a condition of furlough leave that the employee does not work elsewhere. Therefore, in theory an employee could work for another employer. It is however clear that the employee cannot do work for the employer seeking the reimbursement during furlough leave.

15. Question: Can employees on furlough leave do volunteer work?

Answer: Yes, provided that the volunteering in question is not for the same employer.

16. Question: Can employees on furlough leave undertake training?

Answer: Yes.

For advice on this and all other areas of employment law please contact Paul Grindley at PaulG@winstonsolicitors.co.uk or call Winston Solicitors on 0113 320 5000