The Government issued further guidance on the furlough scheme on Saturday which has answered some of the questions which were raised by the initial guidance and some new elements of the scheme were also provided. In addition, ACAS has provided a revision to its guidance on carry-over of holiday which caused an element of confusion between the interplay of holiday with furlough leave (only some of which has now been clarified).
- It applies to employers who enrolled for PAYE on line (if not done, do it now).
- Furloughing has to be confirmed in writing and a record of that communication kept for 5 years.
- If the employer receives public funds to pay staff costs (even if privately owned), provided that funding continues, you cannot furlough those staff.
- If an employee has caring responsibilities (e.g. child care issues caused by lockdown) they can be furloughed.
- If an employee has two jobs, they can be furloughed from both or either employer. The cap of £2,500 a month applies to each employer individually.
- An employee who has been furloughed, can go and work for another employer. This was unexpected but may be a means by which some key services can be boosted.
- If an employee is employed by their own ‘umbrella’ company, the umbrella company, can furlough that employee.
- An employer can reclaim under the scheme (subject always to the cap of £2,500), salary, past overtime (presumably meaning compulsory guaranteed overtime given the prohibition on work, or where overtime is obligatory and forms part of usual remuneration, may mean that they are to be treated as ‘variable paid’ staff and thus fall into the definition of variable pay), fees (unclear what that means) and compulsory commission payments but excluding discretionary bonuses, tips, commission payments, benefits in kind (health insurance, company car etc). What is and what is not going to be paid must be made clear at the time that furlough is offered to staff so that there is clear consent as to the terms of furlough and to avoid arguments about deductions from wages at a later date.
- Employers can bring staff in and out of furlough as long as each period is a minimum of 3 weeks (so rotating furlough is permitted).
- The revised ACAS guide makes it clear that employees may still be required to use a day’s paid holiday for bank holiday when furloughed (Easter coming up this weekend) and crucially, that employees must get their ‘usual’ pay for bank holidays.
- It is not limited to employees who would otherwise have been made redundant, provided they were on PAYE as at 28 February 2020.
- Apprentices can be furloughed. Employees on furlough can volunteer as long as it doesn’t provide services to or generate revenue for the business. The employer can help find volunteer or training work as long as in line with PHE (Public Health England) guidance.
- Company directors can be furloughed (subject to being on PAYE as at 28 February 2020) and can undertake statutory duties. Must be done by means of a formal Board resolution and recorded as such with written notification to the director.
- Individuals can furlough staff such as nannies, cleaners etc as long as they were on PAYE on 28 February 2020.
- If an employer made staff redundant or if they stopped working after 28 February, the employer can re-employ them and put them on furlough. This includes those who left by way of resignation or were dismissed for gross misconduct, not just those who were made redundant.
- If an employee is on SSP (Statutory Sick Pay) or contractual sick pay, they can’t be furloughed. If they are shielding, they can be furloughed.
- ‘Workers’ (as opposed to ‘standard’ employees but not including self-employed) who are paid through PAYE, can be furloughed.
- Employees can be furloughed from the date they stopped work, not from the date the decision to furlough them was taken or the date that they were asked to and agreed to go on furlough.
- What is the extent of the ‘statutory duties’ a director can undertake?
- What happens if someone becomes ill during furlough leave? Do they ‘come off’ furlough and go on to sick leave? If so, what happens if they become sick before they have been on furlough for less than the minimum period of 3 weeks?
- What happens to staff TUPE’d after 28 February 2020? Can they be furloughed by the ‘new’ employer?
- Can normal disciplinary issues and grievance proceedings continue during furlough leave or is that ‘working’?
- Whilst the ACAS guide refers to taking bank holidays during furlough leave, does that extend to other holiday entitlement and is there a difference between ‘euro leave’ (4 weeks including statutory holidays) and the additional minimum 1.6 weeks under the Working Time Regulations. If holiday can’t be taken, can you offer furlough on the basis that any contractual holiday in excess of the statutory minimum will be forfeited? If it’s not permitted but they do take holiday, does that break the period of furlough and negate any furlough period of less than 3 weeks which was undertaken before that ‘holiday’?
- Whilst the ACAS guide on holiday refers to paying ‘usual pay’ during bank holidays, what is ‘usual pay’ and does it depend on the terms outlined in the furlough agreement reached with the employee?
- Where you are furloughing 20 or more staff from one establishment, what are the obligations under the collective consultation obligations and/or should you file an HR1 form as a matter of caution.
- If making redundancies instead of furloughing, and 20 or more are affected, do you have to consult for the full period of 30 or 45 days or would this be a ‘special circumstance’ allowing shorter consultation?
- Are there associative disability discrimination issues and/or sex discrimination issues that may arise where an employee is not sick themselves but is shielding a vulnerable relative and/or has childcare difficulties and is then dismissed for refusing to come to work. Would that also amount to an automatic unfair dismissal for a health and safety reason under section 100 of the Employment Rights Act 1996.
- Is there an obligation to prioritise vulnerable staff on the basis that they may be disabled? Likewise, is prioritising elderly staff, age discrimination and/or can that be justified?
- Would it be an unfair dismissal if an employer refused to ‘redeploy’ a redundant member of staff to furlough, as a means of avoiding their redundancy in the short term?
- If an employer is furloughing staff for their own safety (elderly or vulnerable or those who have that profile within their household) but the employer needs their role to be filled, the employer can take on someone else to cover for them whilst that employee is furloughed.
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