Posted on 17th June 2020

Furlough – the topic with more recent exposure than Brexit – and you have some questions as a furloughed employee:

Let’s start with the certain – since you have been furloughed your status, as an employee will not have been changed and all your contractual and statutory rights remain intact -if there is any attempt to unlawfully remove these rights then you are likely to have a claim.

Be aware, however, that the furlough scheme will end on 31 October 2020, by which time, the Government’s contribution will reduce to 60% and your employer may seek to take advantage and alter your contractual terms.

Q&A guide for the furloughed employee

 

Can I work for someone else?

Yes, if your employment contract allows you to do so.  If it doesn’t then you can try and ask for a temporary variation.

If you have really important information about your company in your head, your employer may not be inclined to agree but that will depend on the circumstances – ask yourself whether your other (Corona) job is likely to conflict with any duty that you owe to your employer.

Given that you have been missing 20% of your salary, your employer will need to be able to explain why you shouldn’t be allowed to work somewhere else to make up the difference.

Can I take a holiday?

Yes, you can but your entitlement and the ordinary notice requirements for doing so are unchanged.

Can I be disciplined for refusing to work?

No, whilst on Furlough, you are not absent without permission – you are required to refrain from working due to the operation of the Coronavirus Job Retention Scheme (CJRS). Ordinarily, an employment tribunal would be likely to allow an employer to summarily dismiss an employee who is absent from work, without permission but not under the CJRS (as you have been told not to work) and if your employer were to try to discipline you then you may be able to sue your employer.

Can I lodge a grievance?

Yes, you can. This is probably not a contractual right (subject to the terms of your employment contract) and you will probably have to expect timescales to be relaxed but you can, still, complain if you feel that you have been badly treated at work. Your employer, probably, won’t accept any complaint about your reduced salary and you should seek specialist employment law advice about this.

Can I access medical services provided by my employer to help with mental health issues?

If it is a contractual benefit, yes, you can. Some employers will offer a helpline but the provision may be more limited. You should maintain contact with your GP or another medical adviser if you think you have been affected by the isolation caused by the Coronavirus.

Is my employer required to accommodate my disability?

Yes, if you are recognised as being disabled any adjustments made shall be required to continue. However, it is unlikely to be considered to be a reasonable adjustment to supplement your income by 20%.

What is my employer allowed to ask me to do?

Can my employer keep in touch with me?

This is a complicated issue and depends on what your employer is trying to achieve – seeking to get around the CJRS scheme is not permitted but your employer may need to speak to you about bringing you back to work (and will continue to owe a duty to you, whilst you are not working even though you are absent). It may, depending on your circumstances, be a breach of your contract for your employer not to keep in touch (and you may be able to claim compensation).

Can my employer require me to carry out work?

Yes, if you’re a furloughed employee with specific skills, then after a period of three consecutive weeks, your employer can take you off furlough and there is no minimum period before you can be re-furloughed. Your employer can elect to rotate employees who are on and off furlough.

Can my employer refuse to pay me whilst I am Furloughed and, what can I do to protect myself?

No, if you are Furloughed then you are entitled to be paid. If you believe that the scheme is being abused you can raise this with your employer, or with an external agency like the police. This will not affect your entitlement to your wages and you may be protected as a whistleblower.

 

As the last word, Brexit is unlikely to affect any claims that you have due to the operation of the furlough scheme. This scheme will come to an end before the UK’s relationship with the EU has, finally, been decided upon.

NB: Before relying upon any opinion or observation made within this article, you must consult a suitably qualified lawyer.  Contact us and we can refer you to a lawyer for free.