Coronavirus Job Retention Scheme FAQs for unfurloughing employees (updated 22 June 2020)

    Coronavirus Job Retention Scheme FAQs for unfurloughing employees (updated 22 June 2020)

    Below is a list of frequently asked questions about the Coronavirus Job Retention Scheme and unfurloughing employees.

    If we have a sudden upturn in business, can we call employees back to work?

    It would seem bizarre if you couldn’t given the aim of the scheme. However, given the minimum period of the scheme is three weeks, this would seem to suggest that if there is an upturn during any such period you will need to wait until you have cleared three weeks if you are to have the benefit of the funding on offer.

    If employees are required to come back to work but there was a set period agreed for furlough, this may represent a further change which needs to be agreed and/or consulted upon.

    Do I need to give notice of a return to work?

    It depends what was agreed when furlough was implemented and if any other contractual terms apply. We’d always recommend giving reasonable notice, which will vary depending on the circumstances. Giving a bit of notice will enable employees to raise any concerns they have prior to coming back, if they have any.

    What do I need to do to document the end of furlough?

    The guidance is silent on this point but the obvious thing to do is confirm the position in writing, setting out the return to normal pay and any other terms which apply.

    If, however, you are bringing employees back on a part-time basis using the Flexible Furlough Scheme, you will need to document certain things. See further below.

    I need my employees back but they are refusing to return to work. What should I do?

    It depends on the reasons for their refusal. Some will have very genuine concerns or reasons as to why they cannot come back. They may have a terminally ill spouse at home, be caring for their children or have an illness which puts them in the extremely vulnerable category.

    Each situation will need to be considered on its merits to avoid discrimination claims. You would be wise to take advice before taking any action.

    Can I bring back some employees and not others?

    Yes, you can although you need to be careful to ensure that any selection criteria are not discriminatory. Please do not assume that person X won’t want to return and person Y will. You should also be mindful that just because you want someone back, they might not be prepared or able to return just yet. Each case needs to be handled very carefully.

    I have heard that employees who have been furloughed can work part-time from July. Is that right?

    Yes. This will only apply to those employees who have been furloughed already for at least one period of three weeks by 30 June 2020, with the exception of those returning from specific family-related leave.

    Can I bring employees back part-time from 1 July 2020 on a rotation basis?

    Yes, this is called the Flexible Furlough Scheme and applies provided that the employees in question were all furloughed for at least three weeks by 30 June 2020, with the exception of those on certain family-related leave.

    Employers should be aware that they can only claim under the furlough scheme for the maximum number of employees furloughed at any one time before 1 July 2020. So, for example, an employer who has rotated 40 employees such that only 20 are on furlough at any given point, cannot bring more than 20 employees back part-time in the same claim period. There are exceptions to this, for example where employees have been on specific family-related leave or transferred as part of a TUPE process.

    If I unfurlough on a part-time basis from 1 July 2020, what can I claim?

    Employees must be paid by the business for the hours that they work, as normal. For those hours that they do not work, employers will be able to claim under the furlough scheme at the prevailing rates on a pro rata basis.

    What are the maximum claim rates per employee from 1 July 2020 and how are these affected if an employee is furloughed part-time?

    July 2020

    The position is unchanged. Employers can claim up to 80% of salary per employee subject to a £2,500 cap in addition to the NI and auto enrolment pension contributions.

    August 2020

    Employers can no longer claim the NI and pension contributions but can still claim the 80% salary subject to a £2,500 cap.

    September 2020

    Employers can claim 70% of salary subject to a £2,187.50 cap.

    October 2020

    Employers can claim 60% of salary subject to a £1,875 cap.

    For those working part-time, these figures are reduced pro rata to the proportion of actual hours unworked.

    What needs to be in writing if I am going to use the Flexible Furlough Scheme?

    There remains some doubt. The latest guidance refers to a written agreement between the employee and employer which should be assumed to be needed until we hear news to the contrary.

    Employers should be as precise as possible as to the requirements moving forward, especially given the legislation change from 6 April 2020, which requires employment terms to state if an employee’s hours are variable and, if so, how that variation will be determined. Don’t forget ‘normal’ employment law still applies.

    I want to reopen my business. Do I have to let people work from home?

    The Government advice is still that employees should work from home if this is possible. It might not be ideal to have someone working from home but if it is physically possible you should generally allow it. It might mean some changes to the way in which people work but it’s important to be flexible at the moment.

    I want to unfurlough an employee but they are in the extremely vulnerable category. What do I do?

    You should speak to the employee and see what their position is. This will likely influence your decision. You have to be mindful of being discriminatory (most likely in relation to age, pregnancy or disability where furlough is concerned) but equally you are under a duty to ensure that you can provide a safe working environment.

    Whilst you may be able to do this for some employees, those in special categories might require a higher standard to be achieved. You must be satisfied that it is safe for someone to return. Don’t forget the particular rule which applies to pregnant women requiring suspension on full pay in certain circumstances.

    Take advice in these situations to ensure all the circumstances are taken into account.

    If I bring people back from furlough and into the workplace, what do I need to do from a health and safety perspective?

    Fundamentally you need to ensure that it is safe for employees to be in the workplace. You need to have in place a Covid-19 risk assessment, which is produced in conjunction with employees, and put in place as many health and safety measures as you can. Employers need to be thinking beyond hand santisier and facemasks. Every aspect of the business needs to be assessed from how staff get to work, move around the buildings, interact with people and so on. Remember that specific individuals will have higher needs and what might be sufficient for some staff might not be sufficient for others.

    Once this has been done, a poster needs to be displayed as evidence of compliance.

    Warning: this is not a tick box exercise!

    Can employees be asked to work different hours/split shifts when they return to work, to help with social distancing?

    As with all changes to employment terms, it’s a question of consultation with staff. They may be prepared to agree to these sorts of measures and equally there may be reasons why it is not feasible. These sorts of issues frequently give rise to discrimination claims, often without employers realising it so please take specific advice on your circumstances. Broaching the question may be the first step to establishing whether a formal consultation is required.

    Is there a minimum period of furlough after 1 July 2020?

    No. As long as an employee has been furloughed for at least a three week period before 30 June 2020 (those on specific family leave aside) there is no minimum period for furlough from 1 July 2020. Employers can choose, subject to employee agreement, how often an employee will work.

    What’s changing in relation to actually making a claim under the scheme from 1 July 2020?

    Claims cannot overlap months and the minimum claim period will be one week as a general rule. Employers will also need to report both hours worked and the usual hours an employee is expected to work. This could present a problem if an employer is making a claim in advance of the payroll date as the hours an employee will work need to be fixed. The calculations potentially become more complicated and employers should review the government guidance when making decisions to ensure the outcome they are expecting is achieved.

    I have a question about furloughing employees. Can you help?

    See our blog for frequently asked questions about furloughing employees.

    We are here to help

    If you would like any advice on this or any other employment issue, please contact a member of the Employment Law Team.

     

    DISCLAIMER

    This information is given to the best of our knowledge and does not constitute individual legal advice upon which you can rely. The situation relating to Covid-19 and the Government’s proposals are constantly evolving and may have changed since this document was produced. For up to date advice on your own situation and whether there are any other considerations relevant to your business, please contact us before taking any action.

    Last updated 22 June 2020

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