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Furlough leave: common questions answered

We’ve had a large number of questions regarding the government’s job retention scheme. Our Which? Legal team has answered some of the most common.

In March the government announced a Scheme to ‘help employers whose operations have been severely affected by coronavirus to retain their employees and protect the UK economy‘.

Employers can ‘furlough’ certain staff and apply for a grant from the government to cover 80% of each person’s usual monthly wage, up to a max of £2,500 a month. 

The Scheme will close to new entrants from 30 June 2020 and is due to come to an end altogether in October 2020.

On 29 May, the Chancellor announced some important changes to the scheme:

From 1 July 2020:

i) the number of employees an employer can claim for in any one month may not exceed the number in any previous claim, i.e. no new people can be added,

ii) employers will be able to furlough people for less than the current minimum of three weeks.

iii) furloughed employees will be able to return to work on a part-time basis for any amount of time and any shift pattern. Employees will be entitled to be paid in full for any days worked, whilst the employer can submit a claim under the Scheme for days not worked (subject to the relevant salary caps).

From 1 August 2020:

Employers will be required to pay the following contributions towards furloughed employees’ furlough pay:

August: the employer national insurance contributions and employer pension contributions on the furlough pay.

September: 10% of employees’ 80% furlough pay. Recoverable furlough pay will be capped at £2,187.50.

October: 20% of employees’ 80% furlough pay. Recoverable furlough pay will be capped at £1,875.

As furloughed employees can return to work on a part-time basis from 1 July, the new caps will be proportional to the hours not worked.

On 12 June the government published further guidance on how the Scheme will operate between July and the end of October.

The Scheme applies to anyone who is furloughed “by reason of circumstances as a result of coronavirus or coronavirus disease”. An employer cannot apply for a grant if to do so would be “abusive or is otherwise contrary to the exceptional purpose” of the Scheme.

Guidance on the scheme is continually being updated, but the team here at Which? Legal has done its best to answer some of the most common questions we’ve seen so far.

Read all the latest COVID-19 news and advice on our dedicated hub

Who’s eligible for the furlough scheme?

From 1 July 2020 employers can only claim from the Scheme in respect of employees who were furloughed on or before 10 June 2020, with the exception of those who are returning to work following a long period of statutory family leave, e.g. maternity or shared parental leave.

Prior to that, any employer within the UK was eligible to claim, but they could only furlough staff that were on their PAYE payroll on or before 19 March 2020. This included staff on ‘zero-hours’, fixed-term or temporary contracts.  

Anyone who “stopped working” on or after 28 February 2020 but before 19 March can be furloughed if they were re-engaged by their former employer. However, there was no obligation on their employer to do so.

People hired after 19 March 2020 have never been eligible to be furloughed.

The scheme does not apply to the self-employed – they may qualify for support under the Self-employment Income Support Scheme.

Can you still undertake work whilst you are furloughed?

Currently you cannot do any work for any employer that has furloughed you, but you can undertake training.  

You can work for another employer (providing your contract of employment does not prevent you from doing so, or your employer consents). However, you cannot work for any business that is associated with or linked to your employer. 

From 1 July you can return to work for your employer on a part-time basis (see above). If your employer wants you to begin working part-time they will need to send you a new furlough agreement to sign outlining the circumstances in which they may require you to attend work.

You can do volunteer work whilst on furlough, providing it is not for your employer. 

Can you forced to take holiday whilst on furlough?

Any employer considering asking someone to take annual leave should check that they have the right to do so under the contract of employment.

If the contract doesn’t mention anything on this point, your employer may still be able to require you to take leave; by giving you prior notice equivalent to at least twice the length of time they want you to take off. For example: if they want you to take one week’s holiday they would need to give you at least two weeks’ prior notice.

Depending on the circumstances, there may be arguments to resist being placed on compulsory leave. This can be complicated; if you’d like more in-depth, affordable advice from a legal adviser on this point, you can call and join Which? Legal.

What pay should you receive if you take holiday whilst on furlough?

Perhaps surprisingly, this is a complex and, as yet untested, legal grey area. However, the general consensus appears to be that you should receive your normal pay for any holiday taken whilst on furlough leave. This view is supported by the government’s guidance on holiday and pay whilst on furlough, and separate ACAS guidance. Therefore, there is an argument that your employer should make up any shortfall in your pay.

Can you be furloughed more than once?

Yes, multiple times. From the 1 July, the minimum furlough period of three weeks will be removed so employers will be able to allow people to gradually return to work, i.e. on a part-time/flexible basis.

If you have jobs with different employers, you can be furloughed from one or both jobs.

What is the procedure for employers to end furlough leave?

The government has not outlined a particular mechanism for employers to end furlough leave and bring people back into the workplace. Ideally, your furlough agreement would provide for the circumstances in which furlough ends and how much notice your employer should give you before requiring you to attend the workplace.

In the absence of anything in your furlough agreement about this, your employer should aim to give you reasonable notice. What is ‘reasonable’ will depend on your individual circumstances.

ACAS have prepared some guidance about returning to the workplace which encourages employers to speak to its staff about their plans to work, including any planned changes to the workplace to minimise risks, e.g. providing hand sanitiser, changing start times (to avoid rush hours), amending working hours/patterns to avoid too many people being in at the same time.

Concerns about returning to the workplace

If you have concerns about returning to the workplace you should raise them with your employer in the first instance.

If you are able to work from home, this may well resolve the issue. If not, your employer should consider the current public health advice and the specific circumstances and reason why you are concerned about attending work. For example, if you have school age children but schools remain fully closed, you may be entitled to take dependant’s leave, holiday or unpaid leave (with agreement of your employer).

You also have certain rights; including the right not to be dismissed or suffer any form of detriment for raising certain health and safety concerns. If you have such concerns you should take legal advice to understand your potential rights.

Can your employer still make you redundant?

Yes it can – either whilst you are furloughed or afterwards. Being furloughed does not affect your normal redundancy rights. 

What are the alternatives to furlough leave?

Your employer could ask you to take a temporary (or permanent) pay cut and/or reduce your working hours.

Your employer could also ask you to stop working for a while (a ‘temporary lay-off’), or work fewer hours (‘short-time working’). However, they would need either your agreement or a contractual right to do so. 

The above information is provided by Which? Legal. Have you been placed on furlough leave? Do you feel you were given all the information you needed around the scheme?

Comments
giancarlo piccione says:
15 June 2020

Hi, i my restaurant opens next Thursday 18th June because it has a beer garden and i would like to know what happens about furlough?
Does the Gov. pays half hours and the others are paid by the employer? Or do i lose complitely the furlough?
Thanks

Anon B says:
15 June 2020

My company is not paying the 100% of salary for holidays taken while on furlough. They instead have said that people will be paid the 80% furlough rate and they will then give the 20% back as time off in lieu when they come back to work. Is this correct? Also should the 100% salary apply to Bank Holidays as well as annual leave?

Jackie Breedon says:
18 June 2020

I currently work in a Leisure Centre. The government is to give the go ahead for the Leisure sector to reopen in July but my local authority is saying the centre cannot open in July as the centre is not ready re. safety measures will not be in place in time for the centre to open. Does this mean the centre will no longer receive Furlough for their staff?

Georgie says:
30 June 2020

Hi,

My job is not going to restart before the furlough scheme ends. My employer has said that as an alternative to redundancy, they can keep us on the furlough scheme but once we’re back at work, we need to repay in full their contributions to the scheme from August to October. Has anyone else come across this? It seems really dodgy to me.

Russell Whalley says:
1 July 2020

Hello
I was furloughed for 3 weeks, when I came back I booked 2 weeks hol and gave a couple of months notice , they are saying I will be refurloughed for the hol i have booked and make up the 20 percent so am payed full, is this legal can I reclaim the 2 weeks hol 😊

sheila says:
9 July 2020

they cant furlough you for two weeks the minimum is three weeks, so this wont work

Hi I was contacted by my employer today (3/6/20) at 2.30pm and told I had to return to work Monday (6/6/20). Unfortunately I have 2 school age children and my wife is an emergency care nurse and unable to take time off to look after them. My employer has informed me the furlough scheme has ended and I don’t have a choice. Is this accurate or can I stay on furlough until my children return to school?

Will says:
3 July 2020

Hello,

I wonder if someone could offer help or advise please,

I work in the Media and Entertainment industry and was working on a short/fixed term contract that ended on 27th March 2020. For the last 14 weeks I have struggled to secure an interview, let alone a job.

I have gone from a well paid job to JSA payments of £74 per week (which didn’t start until May) and having to live back with my parents. I seem to have fallen through the gap when it has come to the coronavirus job retention scheme and self-employment income support scheme.

I work all my life and pay taxes all my life.. yet forgotten by this “doing whatever it takes” government.

any help or advice deeply appreciated.

thanks,

Will

Will says:
3 July 2020

I have also tried writing to my MP.. who brushed over the fact that millions of people have been left out of coronavirus support packages and fobbed me off with unhelpful links to benefit calculators.

(https://www.theguardian.com/politics/2020/jun/15/more-than-a-million-left-out-of-coronavirus-income-support-say-mps)

Andy J says:
6 July 2020

Hi my employer has recently moved work from my branch to another branch, meaning they can keep employees at my branch on furlough longer , is this legal?

Corin Patterson says:
9 July 2020

Hi Brendan,

I am currently still in employment ( although at 80% work/pay). Do you think the new retention payments could make companies more likely to lay off workers who are/have been employed during this period and bring back others who have been furloughed so they can claim the 1000 back from the government, or is there something I have missed to incentivise companies to keep employed staff ?

I would very much appreciate any advice or insight you could offer.

Anonymous says:
10 July 2020

I have been on furlough since mid March and am on a zero hours contract. My employer will not continue claiming for this come August. I am usually paid weekly but my furlough has been applied for and paid out in 4 week installments. My employer does not wish to claim past the 21st July. Can I be brought back to work with no no guarantee of my working hours, if it means that for the remaining 10 days of July I will receive less than 80% of my wages? Or must they ensure a minimum of 80% is paid up
to and including July 31st?

Dave222 says:
16 July 2020

Hello,

I am currently on furlough and while I am told that there is not enough work for me to return as yet I have found out that someone else is currently carrying out some of the tasks i would normally do. Is my employer within their rights to do this ?

Thanks for any response.

Dave.

Does anyone know an answer on the following – My contract states that I work 35 hours per week, but I have constantly worked a minimum of 45 hours per week for over 2 years, my furlough payment is 80% of the 35 hours contracted and not my average hours of 45 , does any one know if this is how this should be calculated by my employer ?

Michael Marcroft. says:
27 July 2020

Hi, I started back at work on the 22nd of June meaning I had 3 weeks off work then 7 days
in work that month. When I got paid in July I received my monthly salary for July but my bonus pay
which is a month behind (June ) was only for the seven days I worked. I have disputed this as I expected the 3 weeks where I was furloughed in the month to give me my bonus at the 80% rate
as in previous months . Am I entitled to the bonus pay ?

Mrs S says:
3 August 2020

This was my message-
—Please can you advise on Furlough pay, – My contracted hours for my cleaning job changed from 7am -11am (4 hours) mon-fri. To a new contract of 7am-2.30pm mon- fri (7 hours a day) on the 24 th Feb 2020. (I also did overtime when needed) I was furloughed on the 27th March ( after working a whole month on the new contract my pay period being 24th to 23rd ) but my furlough pay is being paid based on last years pay, shouldn’t it be based on the new contract of at least the the 7 hours a day? I gave up a second job to take on the extra contracted hours.

Thank you —

Jonathan Lee says:
3 August 2020

With piece workers, what is to stop unscrupulous employers bringing their employees off of furlough when there is no work for him or her? The employer will receive the 1000£ even if the employee is only given 10 £ of work a week.

Carole Kirby says:
4 August 2020

Hi Can you advise, in April of this year, I was furloughed after working part of the month so I was paid part salary and part furlough. In May and June I was totally furlough, but in July I returned to work. I was part furloughed and part salary, with the last part of the month as salaried. When I got my pay, it was less then April I was advised that it was because there are more days in July to April, so you get paid less. Is this correct