26th May- Webinar Q&A
All information correct as at 2.30pm Tuesday 26th May 2020
We have a number of staff off on furlough and are most likely looking at making a limited number of these redundant this year. If we carry out the usual consultation process etc, are we entitled to have people ‘work their notice period’ while on furlough, presumably topping their salary up to their full rate, but reclaiming the 80%?
Yes, you are entitled to do this and we would recommend that in most cases notice pay is topped up to 100%.
There is a question over whether a dismiss on grounds of redundancy during furlough leave would, however satisfy the existing tests for fairness and reasonableness under the Employment Rights Act 1996 however and employers should take advice before making any terminations.
How far can a company go in relation to the control of employees’ activities in their own time. Should a daily sign off sheet be implemented for the evenings planned activities? I appreciate that this incorporates health and safety as well as human rights and applicable laws.
The answer to this question would depend on the facts of the case and the reasons why the employer wanted to “control” the activities of its employees outside working hours. It seems unlikely however, that such control could be easily justified and/or implemented.
How far can an employer go regards the reduction of pay rates and what is the procedure? Can pay cuts be enforced due to the financial impact of the pandemic, or will you still need the employees acceptance?
Depending on the facts of the case an employer can look to unilaterally impose variations to contract or, dismiss employees who won’t accept the changes. The procedure will vary from case to case but formal consultation with the affected employees which sees their consent sought will be necessary.
The pandemic does not alter existing employment rights when it comes to varying terms and conditions of employment and in those cases where consent is required, it will still be needed.
Can you make someone redundant rather than re employ them after they have been furloughed?
Yes, subject of course to there being a genuine need to make redundancies and a full and fair selection/consultation being carried. Advice on the process should ideally be sought prior to any redundancies being announced.
Can furloughed employees be brought back from furlough and then swapped with another furlough employee alternating them?
Yes: the government have confirmed that it is acceptable to rotate employees on furlough leave.
What is the cost of furlough to employer post 31 July 2020?
We are currently awaiting confirmation on this point from the government.
We’re due to re- open on 1st June, a member of staff has been furloughed, and doesn’t want to return back to work yet because she’s pregnant, does she then go on SSP or remains furloughed?
This depends on a number of factors including when the employee is due to give birth; her current state of health; the role that she undertakes and whether the employer is able to meet with all Covid Secure guidance. Specific advice would need to be sought on this matter to ensure compliance with all relevant legislation and best practice
I currently have all of my staff on furlough and I am paying them 100% of their wage. It has been brought to my attention that one of them is working for another company during this time on a paid basis. Is this allowed and should I have been informed by my employee before he took the other job?
There is nothing in the CJRS which prohibits employees from working elsewhere during furlough leave, even when they are being paid 100%. If you had measures in place requiring employees to notify you of alternative work then the employee would have needed to have adhered to these.
Can staff on furlough leave still be asked to complete appraisal and carry out the review?
HMRC have stated that employees cannot undertake any work or render any services for their employer including where this generates income. Specific advice from HMRC should be sought on this point but there is a question over whether participating in an appraisal process would be permissible under the terms of the CJRS.
Can we demand a return to work?
This will depend on a number of things, including whether you are able to meet with the government’s Covid Secure guidance and an individual’s own personal situation but in theory, an employer can reasonably require an employee to return to work if there is work available for them to undertake with any unreasonable failure to return constituting a disciplinary offence.
Can we withdraw furlough payment?
An employer can remove an employee from furlough leave at any time after which, no further grant claims under the CJRS could be made.
If the employee is told the furlough payments are to be withdrawn and a return to work is required, but they refuse to return, are they still entitled to furlough?
This will depend on the facts of the case. No employee has an automatic right to be furloughed but in some cases, this will be considered a reasonable approach for an employer to take.
If we force annual leave do we need to top up the 20%?
Yes. All annual leave taken during furlough leave needs to be paid at 100% of an employee’s normal wage.
If employees would like to take annual leave, but the business are unable to top up the Furlough payment by the necessary 20%, what needs to happen?
The employee cannot be considered as being formally on annual leave in this case and they should be allowed to roll the holiday over past the furlough period to take upon their return to work. Annual leave must be paid at 100% of pay.
How do we have a face to face consultation with someone who does not have a computer or anyway of using one?
With a degree of difficulty! Employers can look at other means of facilitating redundancy consultation meetings, they could use mobile phone video app services or hold telephone or written, consultations.
Is a discussion around voluntary redundancy the same in practice as a “without prejudice” conversation or are they two different options?
For the most part, they are two different options. A voluntary redundancy discussion does not need to be held on a without prejudice basis unless the employer is wanting to offer the employee an enhanced payment to leave on this basis which it wants covering in a settlement agreement.
Is there financial help available to companies that could help towards payment of redundancy if it would otherwise mean the company could go under?
There are a number of loan schemes available to available which may provide support in this regard.
What is the position on someone rights whose employment period surpasses 2 years during furlough; you could make them redundant during furlough but choose to wait?
Existing employment laws continue to have the same effect during furlough leave and an employee who obtains two years’ continuous service during the furlough leave period will obtain the usual employment rights that come with this anniversary in spite of being on furlough. Any dismissal of any employee in or out of furlough leave who has more than two years’ service will attract an unfair dismissal risk.
Do holidays still accrue during lay off?
If an employee on a salary who is capped at £2500 per month under the furlough scheme, can this still be used as notice pay and are we under any obligation to top this up to 100%
It is advisable to top any notice pay due in the furlough period up to 100%, even if this means the £2,500 cap being exceeded.
When assessing the reduction in work for possible redundancy purposes what is the status of somebody who has signed a contract but has not yet started their role? Are you obliged to rescind their job offer first or can they be considered as part of the same pool for redundancy as existing staff which might see others made redundant before them?
There is no obligation to rescind offers of employment to reduce the pool and to offer a degree of “protection” to employees however, employers should look at all alternatives to redundancy which may include rescinding offers or, bumping practices.
If you are enforcing a change and an employee does not accept the change, does that make them redundant?
Not necessarily. Unless the employee’s role is affected by a reduction or cessation in work then they won’t be redundant if they refuse to accept a change. If an employee still has enough work to do but the employer needs to vary their terms and conditions for a certain business reason then any refusal by the employee could lead to a dismissal but not on grounds of redundancy.
Is it morally wrong to enforce annual leave when leave is to take a break from work, and furloughed staff are not working?
This is a very subjective question and one to which there isn’t a right or wrong answer. Arguably there is a moral/ethical point to be made here but the fact is that employers have a legal right to compel employees to take annual leave during furlough.
Can we compel different employees to take different amounts of annual leave during furlough?
Yes, but ensure that any differentiation is justifiable, fair and non-discriminatory.
Do we have to agree to roll over annual leave if employees request it?
No. Employees should only be allowed to roll leave over under the WTR Amendment provisions if has not been “reasonably practicable” for that employee to take their leave during the current leave year due to Covid-19.
If an employee carries over 5 days holiday to the next holiday year but then has 5 more plus the 5 carried over at the end of the next holiday year, do they carry over all 10 or just the 5 from the covid-19 holiday year?
The second annual roll over would need to include all 10 holidays.