COVID-19 and your job: Furlough – Sickness and Holiday

Today we look at some more technical issues about the furlough scheme including how it interacts with sickness and holiday pay. 

I’ve agreed to go on furlough but 80% of my salary means I’m getting less than the National Minimum Wage; is that allowed?

Yes. The NMW is only payable for those who are working. Therefore, it is not unlawful for payments to be lower than the NMW while on furlough. 

Can I go on part-time furlough?

No. The rules are clear that you may not do any work at all for your employer while on furlough. You are allowed to do training or volunteering provided it earns nothing for your employer. While you are training, employers will have to ensure you are paid NMW. 

While on furlough you MAY work for another employer provided this is not forbidden by your contract (and this is common so do check with your employer). This appears likely to have been permitted in order that furloughed staff might take up temporary work with the NHS, supermarkets or other critical areas. 

My employer wants me to come back to work after a period of furlough; is that OK? 

Rotating furloughed staff is an excellent way of sharing the load where there is still some work to be done and it is considered unfair for that to be done by the same people while others are furloughed.  

Government guidance makes it clear staff may be furloughed more than once so rotation is fine. But one of the rules is that staff must be furloughed for periods of at least 3 weeks so this will need to be factored into any rotation arrangements. 

I am on sick leave. Can I be furloughed? 

In principle, yes.  

Sickness (or isolation) is not a good reason to put anyone on furlough and you cannot both be paid SSP and be furloughed at the same time.  

If you are currently off sick then the guidance suggests it is acceptable for an employer to end the sick leave and furlough you instead though there is a discrepancy here. The Treasury Direction (which gives legal effect to the Scheme) says any existing period of entitlement to SSP must end before a furlough can begin. This suggests you will need to be fit for work again before you can be furloughed even though the guidance does not say that. 

Similarly, if you become ill while on furlough, your employer may either keep you on furlough or put you on sick leave. 

Does holiday continue to accrue? 

Yes. Your contract of employment remains in place so all rights, including holiday will continue to accrue as normal. 

Can I be made to take holiday during my period of furlough? 

In principle, yes, subject to complying with the statutory notice requirements. These generally require an employer to give you notice of double the mandated holiday. So, if they wanted you to take 2 weeks’ holiday, 4 weeks’ notice would be required.  

You are entitled to full pay while on holiday and it is not 100% clear whether the furlough grant can still be claimed. The guidance suggests it can be but the employer will still have to top up so this is unlikely to be a popular option with employers (and it will be even less popular with staff who are being forced to take holiday when they cannot go anywhere …). 

However, some employers are anxious about being faced with excessive demands for holiday when normality resumes or facing large claims for holiday when employment end.  

But I can hold over my holiday now can’t I? 

Yes. While it was formerly prohibited, the rules have been changed to allow up to 4 weeks’ holiday which cannot not be taken because of COVID-19 to be carried forward over the next 2 years. However this does not prevent employers insisting on some holiday being taken. 

Can I be made redundant during or after furlough?

Yes. Subject to complying with the consultation requirements, if the circumstances of the business mean redundancies are necessary your employer can take that action whenever it wishes. 

I have already been made redundant. Does the furlough scheme change anything? 

Possibly but it will depend on your former employer. 

The rules of the scheme permit employers to reinstate employees made redundant because of COVID-19. If they are reinstated then the employer can furlough them and claim the grant. So, provided you agree not to demand the 20%, it will not cost the employer anything and you will still be available to resume work right away if and when the business can restart. 

If you were made redundant when the crisis started it is worth contacting your former employer and asking whether there are any plans to reinstate any employees. 

That said, there is nothing to oblige an employer to reinstate anyone and, unless there is discrimination demonstrated by any partial reinstatements, there is nothing to be done if you are not reinstated. 

It is inevitable that a scheme introduced urgently was unable to consider every possible permutation in advance so it is feature of the scheme that the guidance has had to change and become more complex as time has passed. As a result many employers are themselves confused and you may receive conflicting information. 

A link to the current employee guidance document is set out below but if you are concerned about any point then do get in touch for advice. 

Employee’s Guide:  

https://www.gov.uk/guidance/check-if-you-could-be-covered-by-the-coronavirus-job-retention-scheme 

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.*