Webinar Q&A: The latest you need to know about furlough – 11th May 2020

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Webinar Q&A: The latest you need to know about furlough – 11th May 2020

This information was accurate as of 11th may 2020.
Can you claim furloughed employee’s holiday pay (80% of it) if they take holidays during their furlough leave?
Annual leave can be taken during furlough leave if the employee requests it or, the employer and employee agree it. Any annual leave must be paid at 100% of normal pay but an employer can claim 80% of the payment under the Coronavirus Job Retention Scheme (CJRS).
Do staff need to come off furlough leave for maternity/paternity leave and what costs can I claim back if they stay on furlough during such periods.
No; an employee who is on family related leave can be furloughed. An employer can claim for 80% of any contractual family related pay.
For the Easter bank holiday, due to the vagueness of the legislation at the time, we simply paid two furlough days and will allow a paid day off in lieu at a later date. Was/is this still acceptable?
Yes. This was the arguably the best approach to have taken if there was no employee request/agreement that the bank holidays were to be taken as annual leave.
Where employees booked annual leave prior to being furloughed and this falls within their period of furlough leave, should we regard this holiday as being taken during the furlough period or should they be allowed to take this holiday after they come out of furlough?
This is an employer’s choice. Employees on furlough have no right to cancel any pre-booked annual leave but an employer can choose to allow any such request and for any annual leave to be recredited to the employee’s overall annual leave allowance when they return to work from furlough.
Can employers make employees take annual leave during Furlough if enough notice is given?
The government’s guidance makes no provision for employers to require employees take annual leave during furlough leave, even if notice is served. Employers who take this approach risk any claim for a grant payment under the CJRS failing.
If staff opt to take holiday during furlough leave how will this affect what they are paid? In particular, a) permanent staff furloughed on 80% pay and b) casual staff furloughed on 80% who are normally paid holiday pay on top of their basic pay.
Holiday pay must be paid at the employees’ normal rate of pay based on their normal salary and working hours reference over a 52 week period.
Is there a limit to how much holiday an employee can take on furlough leave?
Can the employer limit the amount of holiday an employee can take on furlough leave, for example, to the amount of holiday they will have accrued to the end of the CJRS?
Yes, absolutely.
If we want to move to a shift system to ensure we can adequately adhere to social distancing (and Govt/HSE guidance) , what options do we have if an employee refuses after consulting with them.
An employer’s options will depend on the employee’s reasons for refusal. Advice should be taken in these cases so that all options can be assessed.
If no annual leave has been taken during furlough what should we do?
There is nothing that an employee needs to do or, should do. If an employer wants an employee to take annual leave during furlough leave then they can try and get the employee’s agreement to this.
If you have an employee who lives with a parent that is shielding for 12 weeks till 30th June, how do we get them back to work. If the furlough scheme end before 30th June what if any payment would we make to them.
An employer’s options and obligations in respect of pay will depend on the specific facts of the case including, whether anyone in the household is symptomatic; the current reason for the employee’s absence; why the family member is shielding; why the employer needs that employee back in work; whether the employer can implement social distancing guidelines and why the employee is refusing/reluctant to return to work.
We have conducted a risk assessment to support enabling employees to return to work in a safe environment. This is likely to mean employees may have to work different shifts – either longer hours with less days or same hours but at different times of the day (potentially evening). Are we able to consult with employees about this whilst they are furloughed to gain their consent as we would be unable to allow them to return (and operate safely) without this?
Yes: an employer can consult with employees during the furlough leave period.
If I lose my furlough support at the end of June, I will have to look at letting some employees go, although this is the last option I would choose, I have no idea what my options are?
Other options may include: laying staff off; short time working; company funded furlough; varying hours of work and rates of pay; sabbaticals.
Can I tell an employee that they will be the last to return from furlough because they have underlying health conditions, or would this be discriminating?
This could be discriminatory on grounds of disability however, specific advice would be required on a case like this.
What is the situation regarding bank holidays and furlough? Are staff due them in lieu if they are furloughed on a bank holiday?
If an employee requests to take a bank holiday as annual leave or, if parties can agree this then the bank holidays can be treated as annual leave during furlough leave and paid at 100%. Any bank holidays not requested or, agreed should be made available as a day off in lieu.
If an employee does not use their entitlement, are we obliged to roll it into next year?
If an employer gives an employee an opportunity to take annual leave but they don’t take it, then there is no obligation to allow roll over. If the employer cannot make provision for the employee to take leave then they must allow a roll over.
Can we pay additional 20% to swap the holidays to top up 80% of furlough money?
Any holiday taken must be topped up to 100%. An employer can agree to vary any contractual holiday offered to an employee through a buy out, but not in respect of the statutory 28 day minimum.
Do bank holidays that occur during furlough need to be added as holiday to an employee’s entitlement to take on their return to work?
Yes, unless the employee asks for these days as annual leave or, the parties can agree for the days to be treated as bank holidays.
Are bank holidays covered by the furlough scheme as long as we top up to full pay?
All holiday must be topped up to full pay but bank holidays will only be covered by the furlough scheme if the employee requests them as leave or, the parties agree for them to be taken as leave.
If we didn’t pay the bank holiday at 100% to furloughed employees what do we need to do in this respect?
The best approach would be to make a top up payment as soon as possible for any holidays taken but not paid at 100%.
Can you ask staff to take the additional contractual holidays?
Yes. You can ask them to agree to the taking of any holidays provided under the contract.
Does the agreement have to be written?
Yes- this would be advised but any preliminary discussions to obtain agreement can be verbal.
As we have had three bank holidays since starting the furlough scheme, can we back date and top up to 100% with the agreement of the employees?
There don’t appear to be any issues with this if the employee’s consent can be obtained.
What is the position with people being on maternity leave and furlough?
Employees on maternity leave can be furloughed in the same way as other employees. Any contractual maternity pay can be claimed at 80% of the employees normal full time salary.
If furlough is to finish at 1 June, and we aren’t at full business capacity where do we stand with laying people off/making people redundant?
We know that the scheme will continue in its current form until at least 30 June*. If you need to make lay offs or redundancies at the end of this scheme, this will be an option if you have a business need necessitating this action. Advice should be sought on process and risks.
Employees we re-furlough is that still at the minimum 3 week?
Yes. Any successful grant claim under the CJRS requires a minimum and continuous 3 week furlough period.
After the first period of furlough leave for 3 weeks, should any consequent leave be for 3 weeks or can it be less?
Each period of leave needs to be for 3 weeks.
What if an employee does not want to return from furlough?
Each case will depend on its own facts but no employee has an automatic right to furlough leave: the choice to furlough is the employer’s.
If we have work but financially it is not viable, can we still leave staff on furlough?
Possibly, but specific details of why the work isn’t viable would need to be considered before a definitive answer can be given.
How much is lay off?
Lay off is unpaid however an employee is entitled to 5 daily payments of £30.00 in each 13 week period of lay off.
Is there a limit on the amount of time an employee can be placed on short time working?
No however, after 4 continuous or 6 non-continuous weeks of short time working an employee can request a redundancy payment.
Do you have to take staff back now following last night’s announcement?
No, not if there is still insufficient work available.
If we are rotating staff of furlough does the 3 week minimum need to be consecutive weeks?
If an employee has been employed for less than 2 years, can we dismiss rather than make redundant?
This question would need specific advice. An employer would still be advised to have a fair reason for dismissal.
Are there employer obligations for staff that have to use public transport?
Yes, employers will have to consider all aspects of an employee’s safety at work, including travel. Adjustments such as car share, paid taxi fares, altered start times, home working etc. should be considered if public transport will present issues.
*Correct on date of webinar 11.05.2020

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