Covid-19

Managing Flexible Working Requests Post-Furlough and The Latest on Flexible Furlough Q&A

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Managing Flexible Working Requests Post-Furlough and The Latest on Flexible Furlough Q&A

All information correct as at 2.30pm, Monday 22nd June 2020

Can I bring staff back sporadically under the Flexible Furlough Scheme as the business demands i.e. busy periods of the day/week?

Under the Flexible Furlough Scheme an employee can be flexibly furloughed for parts of a day or week, to suit an employer’s business needs. Employees can be brought back sporadically however an employer does need to enter into a written agreement with their employees regarding any flexible furlough arrangement and provide details of the working pattern.

I would like to bring staff in Mornings and afternoons for a couple of hours at a time under the flexible furlough scheme- is this possible?

Yes, see above.

I like to bring Operatives in half days at a time while we are trying to build up our workload? is that possible under the flexible furlough scheme?

Yes, see above.

How are bank holidays are covered under Furlough, are they carried over in lieu?

Any bank holidays which are not taken during the furlough period on the basis that they have neither been requested by the employee nor, required to be taken by the employer, are rolled over into the employee’s overall entitlement to take upon their return to work.

Is there any guidance to help with employees requests/needs in relation to childcare as we continue with the ‘work from home if you can’ vs a need to start to get employees back to work – particularly as parents can currently choose not to return their children to school with no penalty from Government.

There is no specific guidance on this however employer must act reasonably when dealing with any employees who have childcare issues. We wrote a previous blog article about this which can be found here: https://howarths-uk.com/childcare-and-covid/ and childcare is also mentioned in ACAS’s Working from Home guidance.

Where  do we stand as employers if a parent refuses to return their child to school, but as a result, is unable to carry out their work commitments – how does this fit with flexible working, or do we start to enter the realms of disciplinary action?  Bearing in mind that no reason needs to be provided for a flexible working request.

This case would require specific advice because the answer would, in part, depend on an employee’s reasons why they were unable/unwilling to send the child back to school and what alternative arrangements the employee could possibly be put in place. Employers should be very wary of initiating disciplinary action against employees for absence due to childcare issues during the Covid-19 pandemic and this should only be considered as a last resort, usually.

Can you just clarify about minimum period of furlough? We have some employees who were furloughed for 2 months and returned to work last week. Can we flexibly furlough them from 1st July or will they need three week furlough again?

The minimum furlough period is 3 weeks and in order to be eligible for the flexible furlough scheme an employee must have been furloughed for at least 3 continuous weeks prior to 30th June. Employees who have been furloughed since 10th June (but not for the first time) cannot be flexibly furloughed until their 3 week furlough period has ended.

Does a furlough letter need doing each time an employee is placed on furlough?

An employer will need to write to an employee to confirm any variations to the terms of the furlough leave/flexible furlough leave each time any such variation present itself.

As a small business who topped up all employees to 100%, am I obliged to let staff carry over holidays come January (our holiday start date)?

Sadly, there are no exceptions when it comes to small businesses or, businesses who topped furlough pay up to 100% and the matter of annual leave. All employers must ensure that employees are able to receive the benefit of their full entitlement to annual leave and where it isn’t reasonable practicable to allow employees to take annual leave during this leave year, employers should be facilitating the roll of annual leave in accordance with the amended Working Time Regulations accordingly.

If I have work and the staff can return from furlough safely but they have no childcare and this is why they can’t come back? Am I still paying them on furlough or not?

Employees who are unable to return to work due to childcare will still be able to be furloughed post-1st July. Employees who are furloughed, irrespective of the reason for the furlough should be paid in accordance with the rules of the scheme in force at the applicable time.

We are going through a redundancy process and the employees have long service, with the max 12 weeks’ notice. Would it still be acceptable to ask them to take holiday leave whilst on furlough and also going through the redundancy process?

Yes, this is fine as long as you give the employees the required notice to take the annual leave (i.e. twice as long as the amount of time you want them to take as leave). Just remember that when an employee is on annual leave, you must top their furlough pay up to 100%. Also remember that whilst you can consult with an employee about redundancy during furlough leave, you cannot require them to do this during any period of annual leave.

When the furlough payment reduces to 70% and then 60% of salary does the employer have to top it up to at least 80% or is it their choice whether to do so?

The employer will be under an obligation to top the pay up to 80% when the government’s contributions reduce come September and will have no choice in the matter.

If an employee requests flexible furlough are we obliged to do this?

It will depend on the reason for the request, but not necessarily. Employees haven’t been given an automatic right to be furloughed and an employer has to agree to any flexible furlough arrangement.

Can flexible working, specifically a reduction of hours be used as a substitute instead of a possible redundancy scenario please?

Yes, this could potentially be a measure capable of being classed as a “suitable alternative” to redundancy. An employee would however have to request and agree to any such flexible working.

Is a request to work reduced hours post maternity leave considered within these flexible working regs or are there separate considerations?

The flexible working legislation covered in section 80F-80I of the Employment Rights Act 1996 and the Flexible Working Regulations 2014 cover all situations, including flexible working requests post maternity leave. Employers faced with request in this scenario though will also need to consider maternity and sex specific discrimination provisions too.

For the employee who work from home, is there any allowance that the employee can claim and how?

The government’s website contains details regarding those Expenses and Benefits which home workers can claim: https://www.gov.uk/expenses-and-benefits-homeworking We would recommend that you review this and seek independent advice from an accountant/tax specialist.

Can I approach my team to ask them to work flexibly and can this be permanent please? I’m just thinking about reducing costs.

Yes, but this would be an employer led variation to contract requiring your employees’ consent as opposed to a flexible working arrangement led by the employee. We discussed employer led variations in our “How to Flex your Workforce and Reduce your Employment Costs” webinar in 26th May which can be accessed for viewing via our website: www.howarths-uk.com
 

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