Furlough Leave More FAQs

As time has gone on, there have been more questions. Here are the questions that have been put to me most frequently in the last week

Who will be furloughed?

Have a business rationale for each one and a fair process. You can also ask for volunteers. Some employees may want furlough leave, especially those with children at home.

Do I have to give notice of return?

There is no minimum period of notice.

Can you require vulnerable employees to go to work?

Wherever possible, arrange for vulnerable employees to work from home.

As a general rule, employees who refuse to do the work they have been contracted to do would be in breach of their contract of employment, and any unexplained or unjustified absence should be explored via the disciplinary process. By exception, an employee can legitimately refuse to work, if he believes to do so would place him in serious and imminent danger. This could apply to those in the government-defined “vulnerable” category.

Can employees work between periods of furlough?

Yes, however, the minimum period of furlough leave is three weeks.

What happens if an employee refuses to return?

An employee is under a duty to return. If an employee refuses to return when recalled from furlough, cease furlough payments and take reasonable steps to find out why. If he fails to respond or return advise him that you will reserve the right to treat him as being unauthorised absent and therefore subject to the disciplinary route.

What about employees on maternity leave?

Employees on maternity leave may be placed on furlough leave, but the normal rules for maternity leave continue to apply. If you pay contractual enhanced maternity pay, you can count this as monthly cost of which the employer can claim back 80% under the Scheme. Ensure that the reason someone has been selected for furlough leave is not because of their pregnancy or because they are on maternity leave.

Can an employee on sick leave take furlough leave?

An employee who has been self-isolating or on sick leave cannot take furlough leave until the end of their sick leave period.

Can I make an employee redundant instead of offering furlough leave?

If you opt for redundancy instead of furlough, there is the risk of a claim from employees arguing that they should not have been made redundant if the fall-off in work was likely to be temporary and should instead have been furloughed.

It will probably be better to opt for furlough at this stage unless a redundancy was required for long-term reasons, or serious cash flow problems presented the employer with no alternative.

What documents are needed?

• The agreement to furlough leave between the employer and employee.
• The business rationale evidencing the business decisions.
• Documentation which demonstrates you have acted reasonably and followed a fair selection process.

Are furlough payments employers taxed?

Treat payments in respect of furlough leave as income in the calculation of taxable profits for Income Tax and Corporation tax purposes.

Holiday

Employees on furlough leave will continue to accrue annual leave. Furloughed employees on cannot take annual leave during this time and you cannot recover 80% of holiday pay.

To deal with the holiday that will accrue during 2020 but may not be able to be taken and therefore be lost, the government passed The Working Time (Coronavirus) (Amendment) Regulations 2020. This now allow workers to carry over up to four weeks’ unused annual leave into the next two leave years where it was not “reasonably practicable” for a worker to take it in the leave year as a result of the COVID-19 pandemic.

Additional leave (the 1.6 weeks’) can only be carried over into the next leave year, but no further, as the new Regulations do not cover this. A payment in lieu of carried over leave may be made on termination of employment.

The 2020 Regulations restrict your right to refuse leave on particular days. Under normal circumstances, you can require a worker not to take leave on certain days. However, the new Regulations state that an employer may only require workers to take carried-over leave on particular days where they have good reason to do so.

What happens if my business folds while my employees are on furlough?

If you can’t meet obligations like statutory redundancy pay, then certain amounts will be covered by the National Insurance Fund.

There are different types of insolvency proceedings, such as liquidation, administration and bankruptcy and each one carries different rules.

For example, TUPE can apply in insolvency scenarios. Staff employed at this time, and those that would have been dismissed to make the business more saleable, would be entitled to transfer under TUPE to the buyer.

It also applies if your company falls into administration – the most common type of insolvency and business sale. If the business is in liquidation, then TUPE would not apply.

If you’re an employer with HR queries and problems, get in touch!

Sign up for our free resources and free weekly tip - subscribe here.

Phone 0345 644 8955
LinkedIn Russell HR Consulting

DISCLAIMER

Although every effort has been made to ensure the accuracy of the information contained in this blog, nothing herein should be construed as giving advice and no responsibility will be taken for inaccuracies or errors.

Copyright © 2020 all rights reserved. You may copy or distribute this blog as long as this copyright notice and full information about contacting the author are attached. The author is Kate Russell of Russell HR Consulting Ltd.