Employment law- Furlough Leave
What is Furlough leave, otherwise known as the Coronavirus Job Retention Scheme “(CJRS”)?
On 20 March the government announced support for employees who would otherwise likely be made redundant because of the Coronavirus outbreak. This is against a background of a significant drop in business and where there is no longer enough work for the current number of employees.
The main focus is to keep your job alive, your employer can ask you to stop working, but keep you on the payroll. This is called being on ‘furlough’. This is a very important point. No work is allowed to be carried out if you are being “furloughed”.
The full scheme was initially running from 20 March to 31 July 2020. If you have not been furloughed at least once then it is no longer possible for you to be furloughed. Please see below for further details.
An overview of the Scheme is as follows:
- You must be furloughed for a minimum period of 3 weeks. You can then return to work, and put on furlough again later if needed.
- If you are being furloughed in accordance with the scheme, your employer should pay 80% of your usual monthly wages, up to a maximum of £2,500 per month. Your employer will then be able to reclaim this from HMRC. You will pay PAYE and National Insurance contributions on any payment received.
- The 80% of reclaimable wages can include contractual commission as well as basic salary, but this will be relation to past sales only as you cannot be completing new sales whilst on furlough. It does not include the value of benefits such as private health or a car.
- The Government scheme is presently open until 31st October 2020. Your employer can only apply for a reclaim of your salary every 3 weeks, so they will doubtless be monitoring the position and requirements of staff in each 3 week period.
- It is not possible for your employer to furlough anyone for the first time from 11 June 2020 onwards. So if you have not yet been placed on furlough at least once, your employer cannot place you on furlough and reclaim your wages through the CJRS. There is an exception if you are returning to work after statutory maternity or paternity leave, in which case you are still eligible even if you are furloughed for the first time after the deadline.
- Your employer can still furlough you if your role is not entirely redundant, but you have less work to do than you usually would. This is as long as you do not do actual work during the furlough period.
- The scheme does not change your contractual or statutory employment law rights, for example not to be unfairly dismissed, the right to a redundancy payment, paid annual leave or not to be discriminated.
- From 1 July 2020, employers will be able to bring employees previously on furlough back to work on a part-time basis (“flexible furloughing”). From 1 July, there will also be no minimum furlough period, although a claim under the scheme must cover a period of at least one week. When working, employees should be paid their “normal” wage, whilst they will receive the furlough grant for the remainder of their usual working hours. The grant and the £2,500 cap on the furlough grant will be reduced in proportion to the hours not worked.
- From August, the government contribution towards wages will remain 80% (subject to the cap of £2,500). But employers will be required to contribute employer national insurance and pension contributions. In September, employers will also be required to contribute 10% of wages and the government will contribute 70%.For October, the employer contribution increases to 20% and the government will contribute 60%. The scheme will close from the end of October.
- The furlough scheme will be closed to new entrants from 30 June. This means that the last date for employees to be furloughed for the first time is 10 June, to enable them to complete the minimum 3-week furlough period by 30 June. All claims for the period ending 30 June must be completed by Friday 31 July.
- On 8 July, the Government announced a ‘Job Retention Bonus’. Under this bonus scheme, employers will receive £1,000 for every furloughed employee who is still employed at the end of January 2021. To qualify, the employee in question must earn at least £520 per month on average. The Government has stated that it will release further guidance on this bonus scheme in due course.
AN EXTENSION OF THE JOBS SUPPORT SCHEME
Chancellor Rishi Sunak has announced an extension to the Jobs Support Scheme, which is due to begin on 1 November 2020.
The government has announced how the Jobs Support Scheme would contribute 1/3rd of the shortfall of wages (capped at £697.72pm) for employees who were working reduced hours, but working at least 33% of their normal (pre-furlough) hours. The employer would contribute a further 1/3rd of the shortfall, and the employee would forego the final third.
The extension applies to any businesses required to close their premises due to local or national coronavirus restrictions. In that situation, the government will pay two thirds of their employees’ salaries, up to a maximum of £2,100 per month. Under the scheme, employers will not be required to contribute towards wages and will only be asked to cover NICS and pension contributions.
Businesses will only be eligible to claim the grant while they are subject to restrictions and employees must be off work for a minimum of seven consecutive days.
The scheme will begin on 1 November and will be available for six months, with a review point in January. In line with the rest of the JSS, payments to businesses will be made in arrears, via a HMRC claims service that will be available from early December. Employees of firms that have been legally closed in the period before 1 November are eligible for the CJRS.
The scheme is UK wide and the UK Government will work with the devolved administrations to ensure the scheme operates effectively across all four nations.
How does the furlough scheme work in more detail?
The updated guidance from the government confirms that:
The scheme is open to all UK employers that had created and started real time information payroll data by 19 March 2020.
When making an application, employers can only include employees who had joined their payroll by 19 March 2020. Anyone whose employment commenced after this date is not eligible.
Those who were on the payroll on 19 March 2020, but who have since been made redundant can be re-hired and then furloughed.
Employees on unpaid leave cannot be furloughed unless they were placed on that leave after 19 March 2020.
Employees on sick leave or those who are self-isolating should receive SSP (or, if applicable, company sick pay), but can subsequently be furloughed. Your employer can switch you to furlough from SSP and vice versa. Employees who are ‘shielding’ (that is, those who the Government has identified as being extremely vulnerable) can also be furloughed.
To calculate the 80% of your salary for full-time and part-time employees, employers will need to use your gross salary as at 28 February. As mentioned above, those employees who have been furloughed must not carry out any work for their employer. You can however undertake training or volunteer work provided that no revenue is generated for your employer. If you are working reduced hours and/or are on a reduced pay, you are not eligible for the scheme.
If your salary varies on a month by month basis, there are separate provisions. As a result, if you have been employed for at least a year before being furloughed, your employer can use the higher of the same month’s earnings from the previous year, or the average monthly earnings from the 2019-2020 tax year to calculate the 80%. If, however, you have been employed for less than a year, then your employer can use an average of your monthly earnings since you started work.
Fees, commission and bonuses are not included in the furlough scheme when applying the 80% calculation as you are not meant to be working. However, contractual commission for past sales can be reclaimed.
The 80% does not include non-monetary benefits (such as health insurance or car).
Your employer will need to decide who to furlough. There would still need to be a fair process and there should be no discrimination in that selection. Additionally, the scheme is not limited to those employees who would otherwise have been made redundant. It applies to any who are furloughed “by reason of circumstances as a result of coronavirus”.
You will need written confirmation of the full terms of the furlough leave to include that it is temporary in nature, and providing for your consent (see below). However guidance from HMRC is saying that they will still honour claims made by employers if they did not obtain your prior consent.
Your employer must use the entire grant of up to £2,500 to fund your salary and not benefits. Also, your employer cannot make any deductions for fees, administration charges etc.
Your employer must notify you of your furlough status in writing and retain a record of this for 5 years.
When is it available?
The government has said the Scheme will continue until 31st October 2020.
My employer wants to put me on furlough, do I have to accept it?
The government has said that the scheme must be implemented in accordance with existing employment law. This means that putting you on furlough is a change to your employment contract. In the vast majority of cases, you need to agree to any changes to your contract that your employer proposes.
You may have a variation clause in your contract of employment that appears to give your employer wide powers to enforce fundamental changes including a reduction in pay. The effectiveness of such clauses is very much a grey area in employment law. It is always going to be open to interpretation of the exact wording, and the background circumstances of it being used. It is certainly not a given that it would be reasonable for your employer to rely on such a clause, even if they have reserved the right in your contract.
That said, if your employer is proposing furlough leave which you wish to reject, it is likely that the alternative is going to be a redundancy unless you are too valuable for your employer to lose.
Does my employer need to confirm my furlough leave in writing?
Yes, this is a condition of the scheme and your employer must keep a written record for 5 years. If you have already been furloughed without a written agreement, you may not fall within the meaning of the scheme.
What would a typical written furlough agreement look like?
The following points are likely to be covered in the agreement:
- That you are taking a temporary leave of absence.
- The start date of the leave of absence.
- If you have already been made redundant, an agreed withdrawal of your termination of employment and, if relevant, repayment of any redundancy payments, payments in lieu of notice and/or severance payments already made.
- How your employer will end the furlough leave in terms of notice give to you.
- What pay you will receive and your agreement to accept a lower level of remuneration than you are entitled under your contract of employment.
- Whether you are expected to use up your holiday entitlement during your leave.
- Confirmation that your statutory rights, such as rights to maternity, shared parental or adoption leave and pay, will continue.
- Confirmation that other than the provisions of the furlough agreement, the terms of your contract of employment remain in force and unaffected
Can I choose to be placed on furlough?
Simply put, no. The scheme will only be available where the employer offers it and the employee accepts. There will be no ‘right’ to be placed on furlough.
Does my employer have to pay the additional 20% of my wages?
The government has said that employers do not have to ‘top up’ employees’ wages to full pay, although your employer may choose to do so.
Of course, being paid 80% of your salary (up to a maximum of £2,500) is a change to your employment contract, so your employer should seek your agreement in advance. You may otherwise have breach of contract/deduction from wages and/or unfair dismissal claims.
Depending on your employer’s financial circumstances, you may in fact be able to negotiate payment of the additional 20%, but this may not be possible if your employer is under financial pressure.
In September and October, the government’s contribution will reduce to 70% (up to a cap of £2,187.50) in September and 60% (up to a cap of £1,875) of your wages. You will still be entitled to 80% of your wages up to £2,500 but your employer will be obliged to pay the difference. Your employer could still choose to top up to full pay but does not have to.
In most cases, if it is necessary to put you on furlough, then it is likely to be in your best interests to accept this, as the alternative is likely to be redundancy.
Can I do any work for my employer while on furlough?
You cannot undertake work for your employer (or any organisations linked to your employer such as another group or associate company) while you have been furloughed. The government guidance says that this includes “providing services or generating revenue”. If you do carry out any work, then your employer may have to repay the grant. HMRC may be conducting audits to check if work is being carried out as this represents a fraud on the system. Further, HMRC has called for employees to report any abuse of the system by employers who make employees work.
On a practical level, if your employer insists that you carry out work whilst you are furloughed, this understandably puts you in a difficult and tricky position. We would suggest you draw the rules of the furlough scheme to your employer’s attention and query why you are being asked to work. You probably won’t want to put your job too much at risk by raising obstacles with your employer as you may find the alternative is redundancy. However the fact remains that the whole point about being furloughed is that you should not be working.
From 1 July, the ‘flexible furlough scheme’ will start, meaning your employer can bring you back to work for any amount of time or shift pattern, while still claiming for any hours not worked. You can, however, remain fully furloughed.
Can I be furloughed if I am a director, and would I be able to undertake any work?
Directors and owner-managers can be furloughed if on PAYE and will still be allowed to carry out statutory duties in these roles, but these are very limited. It would for example, permit the filing of the company’s accounts or the provision of other information relating to the administration of the company, but that is all.
What is the position where I am working for two different employers?
If you have two jobs, you can work for one employer, whilst on furlough from the other.
Can I start a new job whilst at the same time being on furlough from my other employer?
Yes you can, if your contract of employment does not have a clause restricting you from doing so. Even if there is such a clause, your employer is able to waive this if they chose do so so. This means you could end up earning 80% of your old salary and 100% of the new one.
Can I be furloughed if I am on sickness absence?
You are not able to be furloughed if you are claiming Statutory Sick Pay because you are ill, or it is necessary for you to self-isolate. Furlough is possible however, after you are no longer receiving SSP. Also, the government guidance states your employer is free to switch employees from sick pay to furlough and vice versa, although this should not be abused for short term absences.
It appears from the government guidance that you are also able to be furloughed if you are still absent, but no longer receiving SSP.
Can I be furloughed if I am receiving contractual sick pay?
The answer is not clear, but on balance, this appears to be possible when looking at the spirit of the guidance. It is not certain yet if HMRC will reimburse 80% of contractual sick pay only or whether you are able to be paid at your regular rate of pay.
What happens if I am furloughed, but then fall ill and become entitled to SSP?
The position is not clear yet. Either the furlough arrangements will continue unchanged or you could be moved to sick leave and receive only SSP.
As a “shielding” employee, can I be furloughed?
Yes, the guidance from the government is that this allowable and you do not have to be placed on sick pay.
Will I still be entitled to benefits such as health insurance, gym membership if I am placed on furlough leave?
Yes, these will need to be maintained, unless you agree something different with your employer, even though employers are unlikely to be able to claim the cost of these benefits from HMRC.
If your employer offers you permanent health insurance or death-in-service benefits, they should ideally check with their scheme provider about what salary would be used in the event of a claim – would it be normal annual salary or pay during furlough?
Your employer will not be able to claim as part of the 80% the value of your benefits.
Does my holiday entitlement continue whilst I am on furlough?
Yes, you continue to accrue statutory holiday entitlements, and any additional holiday provided for under your employment contract.
Can I take my annual leave whilst on Furlough?
Yes, you can, but you need to obtain your employer’s authorisation in the usual way.
What rate of pay will I receive if I take holiday whilst on Furlough?
The government guidance has made it clear that you are entitled to your normal rate of holiday pay (not the reduced furlough rate). This means your employer may need to top up 20% to bring you up to your normal salary.
Can my employer insist that I take my holiday during furlough?
Yes, it appears that your employer can do this, as the government has now published guidance which supports the view that employers can compel employees to take holiday during furlough.
The relevant part of the guidance states:- “Employers should engage with their workforce and explain reasons for wanting them to take leave before requiring them to do so. 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”.
You do, however, need to be provided with the required notice period. This is double the length of the holiday if your employer wishes to require a you to take holiday on particular days.
Can I carry over my annual leave if I am on Furlough?
If your employer has a policy that you cannot take annual leave while you are on furlough, then you would be able to carry over up to 20 days into the next year if you cannot take your full holiday entitlement this year.
Does my employer have to put me on furlough instead of making me redundant?
Your employer is not obliged to put you on furlough instead of making you redundant. Of course, if your employer has told you that you will be made redundant, you can request that you be put on furlough instead, in accordance with the government scheme. However, your employer does not have to accept this.
If you have worked for your employer for more than 2 years, your employer would still be at risk to an unfair dismissal claim should it not follow a fair redundancy procedure, and this includes exploring alternatives to redundancy. It would, therefore, be reasonable to consider furlough as part of the consultation process.
Will I lose out on my redundancy payment if my employer gives me the choice of furlough or a termination of employment?
Yes, this may be possible. Your employer could be relying on a clause in your contract allowing for a variation in your terms of employment. It would be this type of variation clause that they would argue enables you to be given the choice of either furlough, or a dismissal for unreasonably refusing to accept furlough as a variation.
Whether they can do this would largely depend on what the variation clause says, but it could still be argued that furlough is not something which is reasonable to enforce whether you have variation clause or not. If you do not want to be furloughed, you should insist that you either your full salary must be maintained or failing that, you should be made redundant (and receive the appropriate redundancy payment).
Can my employer put me on furlough simply to claim 80% of my salary to meet the cost of redundancy?
No, your employer is liable to pay you full contractual or statutory redundancy. The government has specifically said that employers can’t use furlough to get out of paying full redundancy payments themselves (presumably because the scheme is intended to avoid redundancies).
My employer does not want to put me on furlough (instead of making me redundant) because it will have to pay my wages now then wait to be reimbursed. Is there anything I can do?
If your employer is having cash flow issues because of the Coronavirus crisis, then it may be eligible for a ‘Coronavirus Business Interruption Loan’ which could be used to pay your wages until HMRC begins reimbursing employers under the Job Retention Scheme.
You could suggest this to your employer as a way to resolve the issue, however there is no obligation on your employer to accept this suggestion.
Can my old employer re-hire me and put me on furlough?
Yes, the furlough scheme specifically allows this if you were on the payroll and stopped working for them after 19 March 2020. You should speak to your ex-employer and ask whether they would be willing to put you back on the payroll and designate you as ‘furloughed’. Your employer may very well agree (particularly if the business is likely to recover quickly after the crisis) but there is no obligation to do so.
Do I have to re-pay any termination payments if I am rehired?
You may have already received a redundancy payment, notice pay and other lump sum payments. It is entirely a matter of agreement between you and your ex-employer on whether you would have to repay any sums already received.
If my employer puts me on furlough, then eventually makes me redundant, will I still get my full notice pay?
Yes, a new law has now been passed by the government has passed to ensure that furloughed employees who are made redundant receive statutory redundancy and notice pay based on their “pre-furlough” rate. The new law came into force on 31st July 2020.
There has been no change the cap on a week’s pay for the purpose of calculating statutory redundancy pay (currently £538), so there is no effect on the overall maximum statutory redundancy payment or unfair dismissal basic award that an employee can receive (currently £16,140).
As the new regulations come into force on 31 July 2020, any redundancy or notice payments already made before that date will not be covered by the new rules, meaning that employees who have already been made redundant may have missed out.
Can my employer make some people redundant and furlough others?
Yes. The guidance clearly says that an employer does not need to place all employees on furlough.
How should my employer select which employees should be furloughed?
It is likely that those who cannot work from home and who currently have no work to do will be obvious candidates for furloughing. Otherwise, employers would probably need to consider a process of calling for volunteers, pooling and selection – as with a redundancy process. If you think you have been discriminated in the selection process because of a protected characteristic (such as race, sex, disability) you may have a claim for discrimination.
If I have been given the option to become furloughed or resign, would I still be entitled to my full contractual or statutory notice pay?
Yes, your usual contractual notice period will still in in place or in the absence of a contract, then your statutory notice pay of 1 week for every year worked up to a maximum of 12 weeks will apply.
Can I be furloughed if I have care responsibilities?
Yes, the guidance states “Employees who are unable to work because they have caring responsibilities resulting from coronavirus (COVID-19) can be furloughed. For example, employees that need to look after children can be furloughed”.
What happens to my maternity pay?
These payments appear to apply as normal, but if the employer offers enhanced earnings-related contractual pay for maternity leave this can be claimed as a furloughed wage cost. The same proposition applies for contractual adoption, paternity or shared paternity.
Will my holiday continue to accrue whilst I am on furlough leave?
The position is not entirely clear. However it is likely that as the scheme does not affect your entitlements under your employment contract and that you remain employed, your holiday should accrue as normal. Until the government produces further clarification, you should try to agree the full terms for any furlough period to include that your holiday leave remains unaffected.
Can my employer extend my fixed-term contract and then furlough me?
Yes, if your fixed-term contract was due to come to an end, the scheme appears to allow this.
Will I be in breach of my visa requirements if I am placed on furlough?
The government has confirmed that those with certain work visas will not be regarded as breaching their visa conditions if they receive funds under the furlough scheme. In other words this will not be counted as “access to public funds”.
What will happen at the end of the furlough period?
You will retain your employment status during the furlough period. At the conclusion, you will have the same rights as you did previously including Statutory Sick Pay entitlement, maternity rights, other parental rights, rights against unfair dismissal and to redundancy payments. Of course your employer will need to make some difficult decisions about to what extent they need to restructure the business, including of course their staff requirements.