On 12 May 2020 Chancellor Rishi Sunak announced that the furlough scheme in its current form will be extended until 31 July 2020. From 1 August 2020 until 31 October 2020 the furlough scheme will remain in place but there will be some changes to enable staff to return part-time and for employers to share the cost. Further details on this stage of the furlough scheme are expected by the end of May.

We have come up with a few FAQs that our employment team has received from employees over the past few weeks and we hope you will find the answer to your question here.

This webpage is produced on the basis of generic advice to frequently asked questions. Nothing should be taken as specific legal advice and you should take independent legal advice on your specific contract, situation and legal relationship if required.

If the answer to your question is not in these FAQs, you require further detailed support and advice, or if you have been offered a settlement agreement by your employer, please email our dedicated coronavirus team on COVIDEmpLaw@ashtonslegal.co.uk. If we can answer your question promptly we will update the FAQ sheet and notify you. In other cases, further support will be provided for an agreed fixed cost.

The Government has released guidance on furlough leave, you can read it here.

We have a dedicated Coronavirus Updates page filled with information and advice on changes as a result of the pandemic.

We understand that this is a difficult time financially for many people. However, if you have found the information in this page and from this service useful then whilst we will not charge you for it, we would ask that you consider making a donation to Ashtons Charitable Trust through Virgin Money Giving here.

FAQs

Furlough Leave

1. Can I work for another business or volunteer whilst on furlough leave?

Yes, you can do either, as long as you account for any extra earnings to HMRC. Your new employer will ensure you complete the correct part of the new starter form.

If you are seeking to get a new job that the employer furloughing you is not aware of during the furlough leave period, you may have to seek their consent to do so – this depends on the terms of your contract.

2. Can I work for the company that has furloughed me whilst on furlough?

No – you may not do any work for that company that generates revenue or provides a service. However, they can still ask you to complete training for them and this is allowed.

3. I’ve only just started working for this company – what are my rights?

If you were not on the payroll on 19 March 2020 you will not be able to be furloughed by your current employer. The employer must also have submitted real-time information to HMRC about you by or before 19 March which means that even if you had started by that date, you might still not be eligible, as many companies submit this at the end of each month. They may discuss alternative arrangements with you.

If you were made redundant by a company or left a company for another reason on or after 28 February 2020, you could ask that employer to re-hire you and furlough you. However, there is no obligation on businesses to furlough anyone and if you are without pay you should consider an application for Universal Credit.

Please note we do not provide benefits advice – please contact your local Citizens Advice Bureau or Job Centre Plus.

4. I am a bank / zero-hours worker – will I be furloughed?

You can be furloughed if you were on the payroll on 19 March 2020. However, because of the temporary nature of many worker contracts, the business may choose to simply terminate your contract instead of putting you on furlough leave. If you are without work and pay you can ask the business to furlough you.

If they refuse, you should consider an application for Universal Credit.

Please note we do not provide benefits advice – please contact your local Citizens Advice Bureau or Job Centre Plus.

5. What are my rights if I refuse to be furloughed?

Furlough leave is an option that the employer may choose whilst the business is experiencing a reduction of work between 1 March and 31 October 2020 as a result of the coronavirus crisis.

In order for furlough leave to be put in place to practice, both the business and you have to agree to vary the employment or worker contract and confirm the furlough leave in writing. If you do not agree, then the variation of your employment contract cannot occur and you cannot be put onto furlough leave.

What you should be conscious of, however, is that your employer may instead choose to make you redundant (or lay you off without pay) due to the reduction in work.

The benefit of choosing furlough leave is that it continues your pay (albeit possibly at a reduced rate) and is not a dismissal, whereas, redundancy is a dismissal and if made redundant, you can’t continue to work for your current employer in the same role. The idea is that when the crisis ends you will be able to be returned to work.

6. What will I be paid?

You will receive a minimum of 80% of your gross pay (up to a maximum of £2,500 per month). Some businesses are agreeing to top up the furlough pay but they do not have to. This calculation is based on your normal pay as at the last pay period prior to 19 March 2020 or on the variable pay calculation (see below). Only your earnings with your current employer who is furloughing you will be taken into account.

You are only entitled to National Minimum or Living Wage if you are working. If the 80% will drop you below that threshold you do not have to be paid NMW/NLW unless you are required to complete any training (including online training).

You will have to pay tax and National Insurance on the pay as normal. This will continue to be dealt with through PAYE by the business.

If your pay varies, then it should be based on the greater of the same month’s pay last year, or your average earnings during the 2019/20 tax year.

You should be paid on the normal pay date each month unless the business has agreed with you a different strategy

7. Can I take annual leave whilst on furlough? What will I be paid during those days?

Yes, you can take annual leave whilst on furlough as normal, however, on the days you do take as annual leave you must be paid 100% of your salary.

Your annual leave continues to accrue during furlough leave and you may be asked to take holiday during the furlough leave period. This is permitted so long as proper notice is given. Your employer/engager should not behave unreasonably, however, for example, they should not ask you to take all of your holiday during this period. You must be able to enjoy rest and leisure time during your “holiday” period – this is not prevented by you not being able to go abroad, or go “on holiday” but it might be more problematic for you if, for example, you are in the shielding category. If you think your current circumstances mean you are prevented from truly taking the benefit of holiday you should discuss this with your employer.

If you have already booked holiday and want to cancel it, you should discuss this with your employer. Whilst you may be able to cancel it, your employer can insist that you take some or all of it if they give you adequate notice.

There has been a change to the Working Time Regulations 1998 to allow workers and employees to carry over up to 20 days holiday from the current leave year into the next two leave years if they cannot take holiday due to coronavirus. Please read our article for more information.

8. I am unable to go to work because I am shielding / on the vulnerable list / have childcare issues – what about me?

If you are shielding, living with someone who is shielding, or have to take unpaid leave due to childcare issues, and are unable to work from home the latest guidance from the Government states that you can be furloughed. This may be different for key worker/public sectors, and always remember that there is no obligation on a business to furlough you.

If you are on the vulnerable list and are unable to work from home but choose not to attend work, you will have to agree with your employer to take unpaid leave or holiday. The rules have changed regarding statutory sick pay and this is now only available to those shielding. If you are pregnant, your employer has to ensure a safe place of work for you at all times, or suspend you on full pay.

You could still ask your employer/engager to place you on furlough leave but there is no obligation on them to do so.

9. My employer has asked me to take a pay cut instead of being furloughed

This is quite normal, as if you are furloughed you cannot do any work for the company. If there is work to do, but the employer needs to be careful of their cashflow, or there is less to do, they may take this approach instead.

This will be a variation to your contract, on either a temporary or permanent basis. They should ask for your consent to do this in the first instance. You do not have to agree to the change to your contract, but remember that if you do not they may take other options, such as lay off without pay or redundancy.

If you are on a zero-hours or bank contract it is often easier for the organisation to end the contract and offer a new one on reduced pay terms.

10. My employer is refusing to furlough me

Unfortunately, there is no obligation on employers to furlough people and we are aware of examples where employers still prefer to make people redundant or lay them off without pay. This may be because of a cashflow issue on their part which means they cannot afford to pay you whilst they await the furlough grant from HMRC.

Other employers are still insisting that people come into work and they may be able to do this, so long as they are operating within the Government guidance.

The best option is to ask the employer to reconsider their decision and highlight the guidance showing what they can do. It may be that you would be willing to go without pay until the grant is received from HMRC and you could let them know this.

11. I work for an agency can I be furloughed?

Yes, agency workers (including those employed by umbrella companies) can be furloughed by the agency and the rules on variable pay would be followed.

12. Can a person on furlough leave be asked to attend a disciplinary meeting or receive a disciplinary sanction?

Yes, the employment contract continues and so it is possible for employers to require employees to engage with the disciplinary process. The process, however, may need to be amended to comply with social distancing rules and the employer may want to conduct it via telephone or video call.

13. I have handed in my notice (or I am about to). Can I be furloughed?

Yes, an employee who is working their notice period is still an employee, therefore, you can be on furlough whilst working out a notice period.

14. When will I be taken off furlough?

This will ultimately be an agreement between you and the employer. It may be that you are kept on furlough until the end of the scheme (currently 31 October 2020), or asked to return to work sooner. The point of the scheme is to avoid making redundancies – even if the lockdown restrictions are lifted it may be that not all businesses can be back to full capacity immediately. Discuss this with your employer if you are concerned.

 15. I have been served notice whilst on furlough until 30 June. Can my notice be extended?

The furlough scheme has now been extended in its current form until 31 July, and we are awaiting information on the changes from that point which will likely entail the winding down of the scheme until 31 October. If an initial end date has been given to you prior to the scheme extension, you should speak to your employer as to whether they will extend your termination date to continue with the furlough scheme.

Sickness

1. I am unwell with coronavirus/someone in my household has symptoms of coronavirus – what should I do?

You should report in as sick in the normal way and will be eligible for statutory sick pay.

If you are not actually unwell but are self-isolating, you may not be eligible for contractual sick pay (as this is usually only when you are unwell) but it will be at the discretion of the business.

You may be asked to get an isolation note as proof of your sickness: https://111.nhs.uk/isolation-note/

2. I have received a letter from the Government telling me to shield for 12 weeks or someone in my household has – what should I do?

If you can work from home you should do so, and should explain to your employer why that is. If you have a letter, you may want to supply a copy of that to the employer/engager.

If it is for a member of your household, your employer/engager does not have the right to see it but they might ask you to sign a statement that you are telling the truth.

If you cannot work from home, the latest government guidance is that you can be placed on furlough leave – you should show your employer/engager the guidance if they do not wish to furlough you.

3. I am on the vulnerable list but not shielding, or someone in my household is – what about me?

If you can work from home you should do so, and should explain to your employer why that is. If you cannot work from home your statutory entitlement is to statutory sick pay only if you do not feel you should go into work.

However, you could always ask your employer/engager to consider furloughing you and this may be an option they will consider.

4. I am unwell for another reason other than coronavirus – what should I do?

The usual rules around statutory sick pay/contractual sick pay apply. You should seek a Fit Note (Drs Note) once you are required to.

Holiday

1. Does my holiday continue to accrue during the coronavirus?

Yes, it does, including if you are on furlough leave.

2. When can I take it?

You can continue to book holiday during the coronavirus crisis, subject to your employer/engager’s policy on holiday. In particular, if you are laid off without pay, or if you have accepted a reduction in hours, you may want to take holiday instead of being laid off or to top up your wages.

3. Can my employer make me take holiday during furlough leave?

Yes, they can. This might be quite disappointing because often we use our annual leave to go on holiday, and we cannot do that at the moment. However, if it is pre-booked, or if the employer/engager gives you sufficient notice, they can make you take your holiday during this period.

HMRC confirmed on 17 April 2020 that you should be paid at your normal pay (e.g. 100% of your normal salary) for holiday taken during furlough leave.

The Government has published guidance on 13 May 2020 stating that “if an employer requires a worker to take holiday while on furlough, the employer should consider whether any restrictions the worker is under, such as the need to socially distance or self-isolate, would prevent the worker from resting, relaxing and enjoying leisure time, which is the fundamental purpose of holiday.”

If your employer tries to compel you to take holiday and you have any concerns as to whether you would be able to rest, relax and enjoy your leisure time we suggest you raise this with your employer.

Family Rights

1. I am on maternity/paternity/shared parental leave – how does this all affect me?

The coronavirus will not affect your ability to take statutory leave or receive statutory pay.

If you wish to bring your family leave to an end and be furloughed instead, that may be something to discuss with your employer. However, you should think carefully as this will bring your leave to an end permanently, and once the furlough leave is over you will be treated as a normal employee.

2. I have childcare issues – what can I do?

If you are an employee, you have two rights open to you:

  • emergency leave for dependents – this is unpaid leave and usually only extends to 1-2 days to find cover, for example, if the childminder is sick on one day
  • parental leave – this is unpaid and applies to employees that have been employed for a year and that have children aged up to 18. They must either have responsibility for the child or be registered as the father on the child’s birth certificate. The right is to take up to 18 weeks’ unpaid leave per child (across all employments). Under the default, statutory scheme employees can only take 4 weeks’ parental leave per year, but this can be varied by agreement and you may wish to consider asking for more time during this period.

If you are a worker, you may have to decline shifts without pay.

In either case, the latest Government furlough guidance states that carers can be furloughed if they are struggling with care arrangements, including for children – you should discuss this with the business.

Lay Off

1. Can my employer still lay me off?

This reference to “lay off” means sending you home unpaid for a period of time, rather than making you redundant. You will remain employed throughout this, and have certain rights to seek redundancy in due course should the lay off continue beyond an initial four week period.

The answer is yes, depending on whether they have a contractual right to do so. This is most likely to happen if you were engaged since 28 February and therefore cannot be furloughed, but some employers are still seeking to do this rather than utilising the scheme.

If you are eligible for the furlough leave scheme but your employer is seeking to lay you off unpaid instead, you should ask them to utilise the Government scheme for the time being.

If they do not have a contractual right to do so then if they just send you home without work they would still be required to pay you in full.

2. What will I be paid?

The only pay entitlement on lay off is to statutory guarantee payments, of £30 a day for a maximum of five days. You will then be unpaid.

Redundancy

1. If I am made redundant, what pay am I entitled to?

The answer to this question will depend on each individual’s particular circumstances. If you require advice on a settlement agreement and/or redundancy, please contact our employment law experts here.

Generally, if you are an employee you will be entitled to your notice pay, your accrued but untaken holiday and (if you have been employed for over two years) a statutory redundancy payment.

2. I am a bank/zero-hours worker – am I entitled to redundancy?

The answer is no – your only entitlements will be under your contract if you have one.

Zero-hours workers are not obliged to take on work and they do not have to be offered to work, so generally, their contracts can be ended very quickly, or they can simply not be offered further work until things pick up again.

3. I have been offered a “compromise agreement” or “settlement agreement” – what now?

This is where an enhanced exit package is offered to you in return for you signing an agreement that waives your right to bring future claims against the employer.

There is no magic formula for determining the amount of the exit package but it should be more than you would otherwise be entitled to, and will usually include a contribution towards your legal fees (as it is a legal requirement for you to take legal advice on the terms and effect of the agreement).

If you have been offered a compromise or settlement agreement please click here.

I’ve been offered a settlement agreement

Please fill out our dedicated settlement agreements form and we will contact you with more information.

I think I've been dismissed unfairly or without proper reason - what can I do?

We would recommend that you take specialist legal advice in this scenario.

Please see our unfair dismissals page for more information.

General Employment Law and HR Process During COVID-19

Regular employee/er processes can continue as normal during COVID-19. For example, if you have pay review, probationary review or a disciplinary hearing scheduled during this crisis, these functions can continue as normal during COVID-19 regardless of whether you are on furlough leave.

Although the processes should remain the same, your employer may amend the format of some of these processes to take into account the current lockdown restrictions, for example, disciplinary hearings may be held by telephone or video call. However, your statutory rights (e.g. to be accompanied to such a hearing) should not be affected.

Helpful Links

Citizens Advice Bureau

Law Clinics:

Job Centre Plus – https://www.gov.uk/contact-jobcentre-plus

Applications for Universal Credithttps://www.gov.uk/apply-universal-credit


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