Covid-19 – Furlough and the national lockdown.

Furlough Scheme

The Covid-19 Job Retention Scheme (CJRS or furlough) has been extended in the national lockdown until the 30 April 2021. Employers can claim 80% of an employee’s usual salary for hours not worked, up to a maximum of £2,500 per month.

When is furlough appropriate?

The furlough scheme is available to employers who ‘cannot maintain their workforce’, or who’s operations have been ‘severely affected’, because of covid-19.

Employers can claim for any type of employment contract, including full-time, part-time, agency, flexible or zero-hour contracts. The employer does not have to have claimed for furlough before, and there is not limit for how many employees can be claimed for. The flexible furlough scheme also allows for employees to work part time and for furlough to be claimed in respect of the time they are not working.

Who can be furloughed?

Qualifying Employees:

  • An employee who was employed on 30 October 2020
  • Employees on payroll on 23 September 2020, who were then made redundant or whose fixed term contract ended

Employee’s whose health is affected by covid-19 and others:

  • People shielding in line with public health guidance
  • Employees who have caring responsibilities resulting from covid-19
  • Pregnant women over 28 weeks or with specific underlying health conditions

What if furlough is not an option?

If furlough is not an option, an employer should consider the following options.

 Working from Home

Employers are advised that if their employees can be working from home, they should take ‘every possible step’ to facilitate this. This option applies especially to offices that effectively implemented work from home in the first national lockdown, or employees who have predominantly screen based roles.

If this is not possible, employers should provide employees with a note explaining why in case they are stopped and challenged on their way to or from work.

Making a Covid-19 secure workplace

If work cannot be done form home, the government has released substantial advice on how to make a workplace covid-19 secure. This advice is not only essential for the safety of employees, but also useful to mitigate risks of legal claims from employees for unfair dismissal, or negligence.

Employers should complete a risk assessment for the office, including considering the different risks for different types of employees. The findings of this assessment should be shared with employees, and larger companies should publish it to their website. Steps should then be taken to mitigate the risks highlighted.

Sick Pay

Statutory sick pay (SSP) has been extended in light of the current pandemic to include certain absences related to covid-19.

This includes those who are defined as clinically extremely vulnerable.

It is also includes those self-isolating because of: a positive test; covid-19 symptoms; having been instructed through contact tracing; or living with someone to whom one of these apply.

Annual leave

If an employee wishes to be furloughed but this is not an option, an employer may consider asking them to take annual leave. Employers will still have to pay employees as usual, so may not be an appropriate option if an employer is trying to save on costs.

Unpaid leave

Unpaid leave can be agreed with the employees consent, and may be the most amenable solution to difficult scenarios for both parties. Employers may also consider asking staff to take reduced salaries for a period of time. Whilst these options are difficult for both sides, an open and honest conversation is recommended between employers and employees to find the best solution.

Disciplinary

If an employee refuses to work, and cannot be furloughed, the employer may be able to take disciplinary action against the employee. However, employers should carefully consider all circumstances and alternative options before taking disciplinary action. Disciplinary action may open employers up to legal risks of discrimination or unfair dismissal claims. Unfortunately because of the uncertain and unprecedented nature of covid-19, the risks that normally come with taking disciplinary action are somewhat heightened.

These risks are situationally dependant, and any employer who is considering disciplinary action, or employee facing disciplinary action, should seek legal advice. Our employment law team can offer tailored advice specific to your situation, and help you mitigate the risks involved in these uncertain times.

Please see our Furlough FAQs for more details.

The contents of this article are intended as guidance for readers. It can be no substitute for specific advice. Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent changes in the law, or the content of any website referred to in this article. © Mundays LLP.

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