What is furlough? Q & A

With the Pandemic continuing, many businesses continue to utilise the Government’s furlough scheme so now is a good time to remind ourselves of the principles of the scheme.

What is furlough?

The furlough scheme allows businesses to apply for a furlough grant of up to £2,500 a month per employee, to cover 80% of salary for those retained but not working any or some hours because of the pandemic.

Some examples of where an employee cannot work their hours due to the pandemic could include:

• Where business has dipped and there is less work to carry out
• Vulnerable employees who have been advised to shield (by the government or their GP) and cannot reasonably work from home
• Non-essential parents with no childcare whilst the schools are shut and who cannot work from home

What is flexible furlough?

Flexible furlough was introduced on 1st July 2020 for employees who can work some, but not all of their usual hours due to the pandemic.

This allows businesses to claim 80% of the part hours not worked, i.e. if an employee is contracted to 40 hours per week but only able to carry out 20 hours of work, businesses can claim under furlough for 16 hours.

Employees do not have had to have been previously furloughed to be eligible for flexible furlough however must have been employed on or before the 30th October 2020.

How long will the scheme run?

The furlough scheme will now run until 30th April 2021, subject to any further extension.

Is there any minimum period that I need to furlough staff for?

No, there is no restriction on the hours or working pattern an employee can work under a flexible furlough arrangement.

Will holiday leave/pay accrue during furlough and can holidays be taken?

Holiday entitlement will continue to accrue as normal during furlough leave.

Employees can take holiday and bank holidays whilst on furlough.

If an employee is on furlough (or flexible furlough) and taking holidays, all holiday hours/days must be paid at the full contractual rate.

As the furlough period is not being broken by an employee taking their holidays, businesses can still claim the 80% salary as they would on the furlough scheme.

If it is not possible for an employee to take their leave before the end of a holiday year as a result of covid-19, new regulations have been passed that allow the carryover of 4 weeks statutory annual leave to the next two holiday years.

Can Employers require employees to take their holiday leave during furlough?

Yes, there is no change to the working time regulations, which require twice the amount of notice to be given for the period of leave.

As the whole country has restrictions on when and where people can go, annual leave doesn’t seem as attractive as usual however businesses need to ensure holidays are taken to avoid build-up and future planning and pay issues, especially now leave can be carried over to the next two holiday years.

My employee wants to cancel their pre-booked holidays. Do I have to agree?

This is at the discretion of the business but no, you do not have to agree to this.

What is the current shielding situation?

Shielding is a measure to protect people who are clinically extremely vulnerable by minimising all interaction between them and others.

People falling into this extremely vulnerable group are again being contacted by their GP.

Employees who are shielding in line with public health guidance can be placed on furlough if they cannot work from home.

Should I furlough pregnant employees?

As pregnant women do not fall into the extremely clinically vulnerable category, they do not automatically fall into the ‘shielding’ group unless they have pregnancy-related medical concerns and are advised to shield.

If pregnant workers do not have a shielding letter and you want to furlough on health grounds, request that they visit their GP to obtain written confirmation that they are advised not to attend work to be eligible for furlough.

Should I furlough staff who have no childcare and cannot work from home?

If childcare arrangements cannot be put in place whilst schools are closed, then yes, businesses can furlough staff or use flexible furlough where some childcare can be arranged.

This should not be a blanket approached but judged on each employee and their individual childcare needs.

What about those with caring responsibilities?

Yes, you can furlough employees not just for childcare but if they are caring for a vulnerable individual in their household.

What should I do if staff are worried or refusing to work?

In accordance with Government guidelines, staff should stay at home unless absolutely necessary therefore every effort should be made to support staff to work from home.

Where this is not possible and staff have to attend work, employers must act responsibly and risk assess to mitigate health, safety and welfare risks, ensuring that employees are able to follow Public Health England guidelines.

It’s important to listen to any concerns staff may have and take any further steps you can to protect individuals with heightened concerns.

The message from ACAS is to be as flexible as possible.

Each case needs to be approached individually to determine the concerns.

Can staff be furloughed, work from home or take time off as holiday or unpaid leave?

Importantly be careful of “forcing” worried or vulnerable employees back into work.

Your duty of care for staff continues during this pandemic.

If there is no other option but to attend work, it’s important to gain staff confidence in your health and safety measures.

Be transparent and share your risk assessments and measures you have put in place to mitigate risks.

What about those who are sick or self-isolating. Can they be furloughed?

The scheme isn’t designed to support individuals that are self-isolating or are sick unless there is a genuine reduction in workload.

Can I make it mandatory for employees to have the vaccine?

Certain sectors such as health care/social care do have mandatory clauses in contracts for employees to be vaccinated, but it’s a highly sensitive area.

The bottom line is that you shouldn’t “force” an employee to be vaccinated and you should take a carrot approach to encourage staff to agree.

Potentially you can consult with staff and agree to change terms to include mandatory vaccination.

We would be mindful of legal risks in trying to enforce vaccinations which include:

• Discrimination – age, religious/philosophical belief, disability.
• Potential human rights breach.
• Personal injury claims with post adverse reactions.
• GDPR, record keeping and data protection.

For further information please contact us or view published details of the scheme here Coronavirus Job Retention Scheme.