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Employment

There is only one F in Furlough

Tuesday, April 21, 2020

A day will come when we will not speak of Furlough.  Sadly that day is not today.

There was a Treasury Direction to HMRC on 15 April followed by yet another update to Government Guidance on the Job Retention Scheme on 17 April.

What have we learnt?

  1. To qualify for Furlough there must be an agreement between the employer and employee. Best practice is the agreement should be in writing and signed by the employee (as per direction).  However, you may be able to get away with an agreement which can be deemed in accordance with normal employment law (guidance).  Why take the risk?
  2. It has now been made clear that employees can agree to take holidays during Furlough. If they do, Furlough pay will be topped up by the employer to the normal holiday pay level.  What remains unclear is whether the employer can require the employee to take holiday.  My view remains firmly that they can by giving appropriate notice under the Working Time Regulations, albeit I accept there is an argument to the contrary.
  3. Statutory sick pay and Furlough are two separate schemes. Never the two shall meet.  An employee can receive statutory sick pay or Furlough but not both at the same time.  Note if an individual is deemed incapable of work because they are vulnerable and have been advised to shield, then they are now eligible for statutory sick pay.
  4. An agreement to defer Furlough payment to the employee until it is received by the employer is likely to be acceptable. However, be clear you should pay all the money you receive to the employee without deduction of any form of administration fee.
  5. The Furlough scheme is open until 30 June 2020, which suggests that if lockdown is lifted sooner, employers may still be able to legitimately Furlough staff until the employer is ready for them to return to work.

Finally, the online portal opened today 20 April 2020.  It seems to be relatively straight forward.  We are receiving mixed messages about how easy some people are finding it to claim.

Stay safe.  Wash your hands.

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