Q&A: Webinar Session 18th May 2020
All information correct as at 10.00am, Monday 18th May 2020
If an employee chooses to leave their employment or the employer needs to make an employee redundant whilst the employee is on furlough leave, I understand that the government has advised that redundancy costs must be borne by the employer and grants from government JRS scheme cannot be used to pay these costs. However it is not clear whether an employee’s notice period as indicated in their contract of employment can be activated by either party and served during the furlough leave or does the employee need to be unfurloughed before this process can begin.
An employee can be subjected to notice during the furlough leave period. An employee can choose to resign or an employer can choose to dismiss. An employee does not need to be taken off furlough leave for their notice period to commence.
When making employees redundant who have previously been on furlough is the usual consultation period unaffected?
All existing redundancy consultation rules remain the same and are unaffected by the CJRS or, whether an employee has been furloughed.
If employees are required to take holiday during their furlough period ( as I understand is permitted) should these holiday days be ‘repaid’ i.e. paid in lieu if they are subsequently made redundant?
No. All holiday which is taken during furlough leave is “officially” taken and there is no requirement to “repay” them on termination.
What if we the open the business with changed opening hours? Do staff still have to be supplied with work as per their contracted hours?
If you have reduced work then you can look at offering employees reduced hours. Specific advice as to a Company’s individual options will need to be sought but options for reducing contracted hours and pay. Possible options might include: lay off, short time working, permanent or temporary variations to contracted hours and pay.
What is the ruling on sending employees home with Coronavirus symptoms regarding sick pay now?
When an employee has symptoms of Coronavirus an employee can be sent home and placed on sick pay as before. Employees who are too unwell to work on this basis should isolate for either 7 or 14 days depending on their situation. SSP will be due for the duration of the sickness absence and normal company sick pay rules will apply.
Can you please confirm that I can claim 80% through the CJRS whilst my staff are on holiday during furlough as long as I top up to 100%?
Yes. This is correct.
How soon after applying for furlough do you actually receive the funds into your account?
HMRC strive to make payments within 6 days.
Can staff members who are furloughed use their annual leave to cover the 20%?
Employees can be on annual leave during furlough leave and employers can compel employees to take annual leave provided that they give the required statutory notice to do this. Any annual leave taken needs to be topped up to 100%.
Can an employee who is on furlough still do voluntary work for the company?
The CJRS prohibits employees from undertaking work, providing services or generating income for their employers. When it comes to voluntary work, each case will depend on its own facts but voluntary work should be approached with caution because HMRC may be inclined to view voluntary work as being indicative of their being actual work available for the employees to do and therefore question why an employee has been furloughed.
Termination of employment during or at the end of the furlough period
An employee’s employment can be terminated at any time for a fair reason. Employers should take advice on any dismissal including the amount of notice pay to which an employee is entitled.
Does a furlough claim have to be for a 3 week period? Can an employer claim the furlough if an employee returns to work part way through a 3 week period?
Yes, in order to successfully claim the grant payment under the CJRS each furlough period needs to be for at least 3 weeks. If the 3 week period is broken, an employer will not be entitled to claim.
At present under the scheme, we can furlough employees if they have childcare requirements, but if the schools reopen, do you think the government will amend the furlough scheme to no longer permit childcare as a valid reason fur furlough?
Employees with childcare requirements can furloughed at present if this prevents them from working, but there is no automatic right for any employees to be furloughed. When it comes to government amendments: it is impossible to guess(!) but there could be an argument for narrowing the scheme in this regard.
Can we still go ahead with planned restructures that would result in some positions being made redundant or would we be better to leave them on furlough? The reason for the restructure would not solely be COVID 19 but it doesn’t seem ethical to make anyone redundant in the current jobs market.
Whilst an employee can be made redundant during furlough leave, the best advice is to leave an employee on furlough leave for as long as possible. The purpose of the CJRS is to “avoid redundancies” and so employers who do not make full use of this scheme before making redundancies may find that the timing of a redundancy dismissal during furlough leave is classed as unfair.
Annual leave…when you say forced does that only apply if they’d previously booked it….I can’t tell all my furloughed staff they must take a weeks holiday after giving two weeks notice…can I ??
The government has confirmed that employer can compel staff to take annual leave during furlough leave provided they give at least twice as much notice of the leave required to the employee. There is no limit to the number of employees who can be required to take annual leave.
From 1 August when some staff can be part time and furloughed, is there any clarity on whether this has to be staff already furloughed or staff who have been working? Thinking people like me who have worked but been less busy but have been needed, could I be furloughed and work part time?
Unfortunately, we don’t know what the scheme will look like from 1 August onwards yet. We are expecting guidance later this month and we will provide updates via our website as soon as information is published.
Furloughed staff can work for someone else: we want someone to clean for us as an employee but she’s been furloughed by the cleaning company she works for. Is this ok?
There would be no breach of the CJRS for you if this individual is not your employee already.
Do you have to roll over bank holidays?
No, if you give your employee notice to take these in line with the statutory requirement of double the length of notice as the amount of leave your want the employee to take. Bank holidays which are not taken as annual leave during furlough will need to be rolled over.
It is unlikely we can give everyone their contractual entitlement this year. We will obviously allow carry over of 5.6. Can we therefore pay people the difference in the contractual entitlement vs statutory so employees do not lose their additional holiday entitlement?
The amendments to the Working Time Regulations 1998 only allow the roll over of the EU allocation to annual leave: so 4 weeks or, 20 days. Employers should ensure that employees are given the benefit of the 8 additional UK required days.
You can agree with your employee to vary or to “purchase”/sacrifice any contractual holiday entitlement from though but you cannot force them to do this.
If on furlough but no signs that business will improve for that role can we make that employee redundant?
Yes, but be aware that a dismissal during a period of furlough leave may be considered unfair on grounds of timing. (Please refer to question above).
Can we extend the probationary period due to being on furlough?
Yes, provided that you have a pre-existing contractual right that enables you to extend probationary periods in normal circumstances.
Just to clarify regarding annual leave taken during furloughed period, do employees have the right to refuse taking leave?
Not very easily. If the required notice is given then an employee cannot refuse to take annual leave unless they are already subject to something which would normally deprive them of enjoying “rest” from work, e.g. sickness or maternity leave.
We have several job share employee’s… how do we get them off JRS?
You just tell them! No employee has an absolute right to be furloughed and as soon as you want the furlough leave to end, you notify them of your instruction in this regard.