The concept of "furlough" has been introduced into many workers' lives perhaps without any true understanding of the consequences this has for their working rights.
The furlough scheme is aimed at protecting businesses facing interruption because of COVID-1919. It was announced by the Government on 19 March 2020 and is officially known as the Coronavirus Job Retention Scheme
Thousands of employers have taken advantage of the scheme and decided to furlough millions of workers.
While furlough is about taking away some of the employee costs of a business that is either not operating or operating at a much-reduced capacity, it does not take away the rights of employees.
If you have been affected by the current coronavirus situations, you can Talk to Thompsons today.
Can I demand to be put on furlough?
No, it is your employer who selects who they want to put on furlough. As long as there are no discrimination issues (for example, selecting people on the basis of their race or sex), your employer will have a wide discretion to decide who they wish to Furlough.
If your employer is furloughing staff and you feel that furlough would be in your interests (if, for example, someone in your household is vulnerable or because school closures have given you extra childcare responsibilities), you should put forward a positive case for why you should be selected for furlough.
Once you have been furloughed you cannot do any work for your employer.
What does furlough mean for your employment contract?
The furlough scheme entitles your employer to claim 80% of your salary up to £2500 from the government. This does not mean you are only entitled to 80% of your wages. Your contract will likely entitle you to 100% of your wages, and your employer cannot pay you any less than this unless you agree to a temporary variation of your contract You should assess all your options before you agree to take a wage cut. However, in many cases the alternative to furlough may be redundancy or unpaid leave, so you should be aware of this risk.
As a note of caution, if you agree to a variation, ensure it is only temporary and does not extend beyond any period of furlough. If this is not the case, your employer may be in a position to bring you back to work on a reduced wage.
Whilst you are on furlough your holidays continue to accrue.
You or your employer may ask for you to take some of your annual leave whilst on furlough. You should receive what pay you would normally expect from annual leave, even where you have agreed to a deduction in wages during a period of furlough.
The Government has announced that where it is not reasonably practicable for an employee to take their annual leave in the original year, this can be carried forward. Please note this only applies to the first four weeks of annual leave entitlement under the Working Time Regulations and any enhanced annual leave will be at the discretion of your employer's annual leave policy. This means that where you have not taken a minimum of four weeks you may be allowed to carry the untaken leave over into the next two leave years.
Lay off and short time clauses
Lay off and short time clauses may already exist in your employment contract. They are likely to say something along the lines on ‘while we will always endeavour to provide you work, in the event that there is insufficient work available, you will agree that we are entitled to place you on short time or lay you off without any pay except your statutory guarantee.
This means that where an employer sees fit, they may send you home without any future work or pay, until such time they have enough business to start paying you again.
One thing to be particularly cautious about when signing furlough agreements is that your employer may seek to introduce a lay off clause into your contract of employment. If you notice this in a furlough agreement, you may want to push back and ask why it has been included. You should speak to your Trade Union Representative for support.
Furlough scheme extensions
On 12 May, the Chancellor of the Exchequer announced that the Coronavirus Job Retention Scheme would remain in place until the end of October. It was also stated that new flexibility would be introduced from August to help get employees back to work.
Employment law Furlough Q&A with Thompsons
In the following video, Paul Kissen from our Employment Law team discusses discrimination in respect of furlough selection, refusing to go on furlough, feeling safe to go to work, working while furloughed, starting a new job while on furlough, zero hours contracts, and furlough for part-time workers.
What furlough means for you?
Furlough agreements are undoubtedly saving jobs and have served a valuable purpose in these unprecedented times.
However, any change in your employment status should be approached with caution and you should make sure you understand fully what you are agreeing to. It might be helpful to talk to your trade union representative or take some legal advice.
If you are an employee being furloughed during the lockdown and you would like more information about your rights you can Talk to Thompsons by calling 0800 0891 331. Or get in touch with us via our online contact form. We are here to help.