‘Why haven’t I been furloughed?’
Employers are entitled to keep some staff on normal pay while others who are not working can receive furlough pay. Employers can rotate these staff, but furlough is for a minimum of three weeks.
Under the government’s Coronavirus Job Retention Scheme, firms can apply for a grant to cover 80% of an employee’s pay, up to a monthly maximum of £2,500. They can but are not obliged to top it up to 100%.
As long as workers were on the company books on or before 19 March, they can be furloughed, but one of the conditions is that they must not undertake any work for the business. See YourMoney.com’s Furlough guide for more information.
Community forums and social media are flooded with posts from those who remain working, resentful and jealous that their colleagues are being paid while not doing any work.
A mother to a toddler is currently on probation with her employer. She is struggling to commit 100% either to childcare or her job (working from home) but as the company is really busy during this time, she hasn’t been selected to go on furlough.
Her employer added this means she gets her full pay, rather than a reduced 80% under the Coronavirus Job Retention Scheme. However, the employee would really rather go on furlough.
Kate Palmer, associate director of advisory at Peninsula explains that an employee can request to be furloughed, but the ultimate decision lies with the employer. They will consider whether they have been affected by coronavirus as set out in the government guidance, and therefore, requests can be refused.
She said: “In these unprecedented times where home working is the new norm for many people, employers should show understanding and leniency to employees who are managing more at one time than they have done before without the normal childcare help of childminders and grandparents, for example.
“A probation period doesn’t change this, but it may be that the employer decides to extend the probation period to be able to assess the employee fully against proper targets which may need to be adjusted during the home working period due to the circumstances. From a practical point of view, the employer could consider a temporary change in working hours to evenings and weekends where the mother has a partner who could look after the child while she works.”
Return to work date amid furlough
In another case, a store employee has been asked to return to work during furlough. However, as he rightly understands, furlough can be taken in minimum three week blocks and the date given for his return to work falls on week two and day three of furlough. He asks whether he is able to return at the request of his boss and what this means for his pay.
Palmer says that in order for a firm to claim 80% of wages through the government grant scheme, an employee must be furloughed for a minimum of three consecutive weeks but it doesn’t prevent employers from calling workers back at any point.
“However, the employer understands the scheme eligibility will be voided where the three consecutive week criterion is not met, and this will affect their ability to claim for wages via the scheme.
“They will then need to consider what they will pay the employee for the absence for which wages are now uncoverable because the employee will likely have agreed to a pay reduction to 80% during their absence,” she says.
She adds that while there is no guidance on what happens to pay during a period of furlough which has been prematurely ended, a best guess is that as it’s not covered under any other employment law concept that allows employers to send employees home on no pay, the question of pay will arise.
“The underlying position is that the employee has been sent home by the employer, has been provided with no work and the scheme the employer wants to use to recover pay is not valid for this period. It is unclear whether the employer can rely on the 80% pay agreement because it may be that that reduction is seen as contingent on being part of the scheme, which will not apply for this period. Alternatively, it may be that the employer has to fund 100% of pay themselves,” she says.
Palmer adds that staff can be furloughed more than once; an employee can come back to work for a week or even a day and then repeat the furlough cycle.
Furloughed but asked to carry out some work
In another case, a worker has been furloughed but her boss has asked her to carry out some tasks for the company.
Under the rules of furlough, an employee is not permitted to do anything which provides a service for their employer or makes any money for the employer.
“There are no exceptions to this,” says Palmer.
“Anything which falls into this category will technically break the furlough period, even checking or responding to work emails or setting up meetings or new project deadlines for the future.
“Self-employed contractors engaged by an employer may however continue to carry on work because employers can’t claim via the scheme for payments made to such individuals because they will not be in the company’s PAYE,” she adds.
These self-employed workers may be eligible for the Self-employment Income Support Scheme instead. See YourMoney.com’s Financial support for self-employed workers for more information.