Q I am struggling to work from home and juggle looking after my children at the same time, can my employer furlough me even though I have work to do?
Yes, your employer is able to furlough any employee who is unable to work because they have caring responsibilities. However, there is no obligation on them to do so.
Q I’m bored of being furloughed – can I do training?
You can be furloughed and do training for your employer at the same time. You are entitled to be paid the national minimum wage for any time you spend training and your employer should top up the government’s contribution to make sure that you receive the national minimum wage for the hours you spend training.
Q I’m bored of being furloughed – can I do a bit of work and just not be paid?
You are unable to do any work which provides services or generates income for your employer during any furlough period. You are therefore able to undertake voluntary work but not for your employer.
Q I’m furloughed but my employer has asked me to catch up on some outstanding matters, writing reports and other “bits and pieces” – can I do this? What happens if I say no?
Your employer should not be asking you to do ANY work whilst you are furloughed. The government guidance is very clear that a condition of furlough is that you do not work, and agree that you will not do so. The difficulty for employees in this situation is the fear of repercussions if they refuse. The first step should be to speak with your employer and explain that the guidance prevents this, and that you are concerned about the impact on you and on the business if you do carry out work whilst furloughed.
Q I’ve found another job, can I work for someone else (or myself) when I am furloughed?
Unless your contract of employment states otherwise, you are able to undertake paid work elsewhere during the furlough period. If your contract says you must not work elsewhere during your employment, you will need to obtain your employer’s approval before commencing employment elsewhere.
Q My employer isn’t furloughing me but has told me to take a pay cut, can they do that?
Some employers have asked employees to take a pay cut in an effort to avoid more drastic measures such as redundancies. Your employer cannot impose a pay cut without your agreement. If and your employer imposes a pay cut without your agreement this will generally amount to a breach of contract. Under those circumstances, you could raise a grievance, choose to resign and claim constructive dismissal. Otherwise you could protest against the pay cut, keep working and bring a deduction from wages claim or a breach of contract claim.
Q My employer isn’t furloughing me but has told me to reduce my hours (which will reduce my pay) can they do that?
Some employers have asked employees to take a pay cut or reduce their working hours in an effort to avoid more drastic measures such as redundancies. Unless your contract of employment expressly permits your employer to vary your working hours they cannot do so without your agreement.
If your employer imposes a reduction in hours without your agreement this will generally amount to a breach of contract. Under those circumstances, you could choose to raise a grievance, resign and claim constructive dismissal.
Q My employer is making me redundant instead of furloughing me, can they do that?
Unfortunately there is nothing that you can do to compel your employer to furlough you. The scheme was initially designed to try and avoid redundancies, and so it is worthwhile raising furlough with your employer as an alternative to redundancy. If your employer is furloughing some staff but not others, they need to ensure the selection for furlough as opposed to redundancy is fair. If you have more than 2 year’s service it may be argued that your employer’s failure to consider furlough as an alternative to redundancy makes your dismissal unfair. This may also be the case if selection criteria for furlough / redundancy have been unfairly applied.
Q Does the time I spend on furlough count towards continuous service?
Yes, whilst on furlough your employment continues.
Q Will furlough affect my employment rights?
You should have the same employment rights as you would had the furlough situation not arisen, including for statutory sick leave, maternity and other parental leave rights, as well as unfair dismissal and redundancy rights.
Q My probation was supposed to end during furlough and now my manager wants to extend it, can they do that?
Ultimately it depends on what it is says in your contract of employment. However, this is a novel situation and so it would seem reasonable for your employer to extend your probation to take into account the fact they would not be able to properly monitor your performance whilst you are on furlough.
Q My contract was due to end during the furlough period, does furlough extend that?
Not of itself. However, your employer can chose to renew or extend your contract and furlough you instead of ending your employment at the original date.
Q What happens if furlough is extended?
At the moment the furlough scheme is due to end on 30 June. It may be extended further by the government – we will have to wait and see. Your employer may ask to you to be furloughed for longer if the scheme is extended.
Q How will I know when furlough ends?
Your employer should let you know how long you will be furloughed, whether it is for the minimum period of 3 weeks, until the government scheme ends, or for another period. Your employer may also put you on ‘rotating’ furlough, so that you have periods of time on furlough and periods of time at work.
Q Can my employer make me redundant at the end of the furlough period?
Yes – there is no obligation for your employer to keep you on after you have been furloughed. It is for your employer to decide whether employees can return to their roles or whether it might be necessary to consider redundancies. If your employer decides to make redundancies, the redundancies should be for a legitimate reason. Your employer must still follow a fair redundancy process – this will include consulting with you and other affected employees.
Q How will my redundancy pay be calculated if I have been furloughed first?
If you have at least 2 years’ service, your statutory redundancy payment would be calculated with reference to your age, your length of service and your weekly pay (subject to a statutory cap). If your pay is the same every week then the redundancy calculation would be based pay that you were on at the time you were made redundant. If your pay changes week to week, then your employer is required to calculate your average weekly pay for the previous 12 weeks (reference period) from the date you are made redundant. You might be entitled to an enhanced redundancy payment if this is mentioned in your contract or if it your employer’s usual custom and practice to make an enhanced payment.
How your redundancy pay is calculated may depend on how your salary was expressed to be altered when you were placed on furlough. Whilst there is no explicit commentary, we anticipate that redundancy pay is likely to be calculated by reference to your pre-furlough earnings. However, that is yet to be confirmed. Equally whilst this may be easy enough to calculate for those on pay which doesn’t alter, such as a fixed annual salary, it may be more complicated for those on variable pay given the way this is calculated and the applicable reference period.
Q Can I take holiday during furlough?
Yes. You continue to accrue holiday during furlough and you can take holiday. During periods of holiday you should be paid 100% of your normal salary. If you are currently being paid less than that as a result of furlough, your employer is obliged to top up. You should request holiday in the usual way in accordance with your employer’s holiday policy.
Q I had a holiday booked for during the furlough period that I now can’t / don’t want to take – can I cancel it?
You can approach your employer and ask for your holiday to be cancelled. However, your employer does not have to agree to this. You should request a cancellation in the usual way in accordance with your employer’s holiday policy.
Q My employer has told me I have to use up holiday rather than being furloughed can they do that?
Your employer is entitled to direct you to take holiday under usual employment law rules, and these have not been changed. Your employer can therefore direct you to use up holiday either during furlough or instead of furloughing you.
If your employer wants you to do this they must tell you when they want you to take holiday and give you the proper period of notice (which is twice the length of the period they want you to take – for example they have to give you two weeks’ advance notice if they want you to take a specific week as holiday).
Q My employer has furloughed me but not my colleague who does the same job, what can I do?
Employers are free to decide which employees are furloughed and which are not. However, the usual rules regarding discrimination will apply. If you are unhappy with your selection, you may want to write to your employer and ask them to explain their decision.
Q My employer has not furloughed me but has furloughed others – and now they are getting paid to do nothing whilst I have to work, is this fair?
Coronavirus has created an unprecedented situation and it is understandable that employees at work who find themselves earning the same or little more than their furloughed peers will feel aggrieved. However, there is nothing which prevents employers from furloughing some employees and not others, provided their selection is fair. Employers are allowed to furlough staff on rotation and you may want to ask your employer to consider placing you and your colleagues on rotation so that they are also called upon to work for periods of time.
Q I’ve been furloughed and I’m about to go on maternity leave, what are my rights?
Your right to take maternity leave will not be affected if you are furloughed. The usual rules in relation to maternity leave will apply. What you are paid will depend on when your baby is due and whether your employer offers pay which exceeds the standard Statutory Maternity Pay rates (“SMP”).
SMP entitles you to 90% of your average weekly earnings for the first 6 weeks of your maternity leave followed by a further 33 weeks at the statutory rate of £151.20 per week (correct at time of writing). Your average pay is calculated using an eight week reference period (the eight weeks immediately before your “Qualifying Week” (which is the 15th week before the week in which your baby is due)). If, in this eight week reference period, you were furloughed and received less than your normal salary, your maternity pay may be affected as your average earnings will be lower than normal.
Q I’m about to return from maternity leave, what will happen to me?
Your employer is entitled to designate you a furloughed worker during your maternity leave or after it ends. You should speak with your employer about your return to work so you can understand what their intentions are. You cannot be designated as a furloughed employee whilst on maternity leave.
The contents of this briefing are for information purposes only. All circumstances are unique and the information and opinions expressed in this document do not constitute legal advice and should not be regarded as a substitute for legal advice. No liability is accepted for the opinions contained or for any errors or omissions.