COVID-19 and your job: My Rights if I don’t want to Furlough

In today’s blog we look at what your rights are if you do not want to agree to your employer’s offers. 

I read your earlier piece and it sounds like I have no real power and just have to accept what I am offered. Is that right? 

Not entirely. Owing to the grave financial position most employers are in it is true that what you are being offered is likely to be the best that can be made of an awful situation. 

Even so, whatever is proposed needs to be considered carefully. Any agreement should be clear about how long it will apply for e.g. it should be a temporary measure and not a permanent change.  

Some employees are having due bonus payments withheld and here too agreements need to be clear e.g. ensuring payment is only deferred and entitlement to the bonus has not been lost altogether. 

In short, if there is anything you are not clear about when you get a notice you should take some advice and resist agreeing anything until you are happy the arrangements are clear. 

All your normal employment and contractual rights continue to exist. The key elements in this situation will be following: 

• Breach of Contract 
• Constructive Dismissal 
• Unfair Dismissal 
• Wrongful Dismissal 
• Redundancy Payment 

Breach of Contract 

Failure to pay you your full salary will be a breach of contract. You could sue your employer for the unpaid amount or bring a Tribunal claim for unpaid wages. Note that there will be some costs not all of which may be recoverable. 

Constructive Dismissal

Non-payment of wages is a serious breach of contract which normally entitles an employee to resign and claim constructive dismissal. This would entitle you to consider a claim for Unfair Dismissal or Wrongful Dismissal. As this means the job is lost, this is an option of last resort but may be practical if e.g. you have something else to do.  

A particular benefit may be that where the contract is ended by an employer’s serious breach, any restrictive covenants in your contract may be unenforceable. 

Unfair Dismissal 

Provided you have at least 2 years’ employment you can complain to an Employment Tribunal that the dismissal was not fair. Your employer will have to explain what the reason for dismissal was and satisfy the Tribunal it was reasonable to dismiss you for that reason.  

This can be very difficult in the case of constructive dismissal but remember, these are ‘unprecedented’ times and I expect employers to be given a lot of leeway as a result. 

Wrongful Dismissal 

Even if there is no remedy for unfair dismissal, employers are required to comply with the notice provisions in contracts. Therefore, on dismissal, you are entitled either to be able to work your period of notice or to be paid in lieu. The remedy for non-payment is a court or Tribunal claim (though the maximum the Tribunal can award is £25,000). 

Redundancy Payment 

If you are dismissed for redundancy or if your employer answers a claim for unfair dismissal by saying you were made redundant then, provided you have at least 2 years’ employment, you will be entitled to a redundancy payment. If your employer goes bust, this may be recoverable from the Government (along with some unpaid wages and holiday pay). 

I’m up for all that; what do I need to do? 

Take advice quickly. For some these remedies the time limit is only 3 months e.g. for a Tribunal claim arising from constructive dismissal or non-payment of wages. Failure to take action in time may be fatal to your claim so do not delay. (And be aware that any internal appeal or discussions will NOT delay any time limits.) 

The time limit for a court claim is longer but in both forums there are challenges as to costs and it will be important to have advice about your position.  

It is true that your bargaining position is not strong given the climate but you still have freedom of choice and, if you consider it is the best thing for you, you can reject offers of furloughing and exercise control for yourself.  

Those steps may be drastic though and mean you have to embark on litigation so it really is essential to get advice before committing yourself.

For more information please contact Nick Hanning – nha@anthonygold.co.uk

*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*