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Illegality & Furlough

Coronavirus - Furlough

Tuesday, April 7, 2020

One in our series of FAQs featured in today’s vlog

Question: What are the possible implications if you’re on furlough and your employer asks you to work?


  1. HMRC can seek to recoup furlough pay from the employer (although we believe it cannot recoup it direct from the employee).
  2. The employer could seek to recoup furlough pay from the employee.
  3. Working on furlough leave is against the principles laid down in the government’s Coronavirus Job Retention Scheme. If an employer furloughs its staff and then requests them to work, this is obtaining public money by deception and is a criminal offence. If the employee is complicit in this then the employee may be found to be aiding and abetting the commission of a criminal offence.
  4. If legal proceedings are brought before a civil court or Employment Tribunal, the Judge may decide that the whole arrangement is illegal and unenforceable and he or she may refer both the employer and the employee to HMRC,

We appreciate that employees are concerned as to whether they will still have jobs when the crisis resolves and businesses are doing all they can to survive. However our advice to employees is that they should stop working whilst on furlough leave. They should raise the issue with their employer and inform them that they are concerned that the arrangement is illegal and tell them that they are not going to work whilst on furlough.  If the employer then targets the employee because of this and they suffer a detriment or are dismissed, the employee will have a classic whistleblowing claim which may be brought in the Employment Tribunal; namely the employee has brought to the attention of the employer, that an offence is being committed and has suffered detriment because if it.

If this is happening to you and you want to take it further do get in touch with Robert Gibson

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