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Update and more commonly asked questions – 5th May 2020

Further to our raft of updates around Covid-19 and Furlough we have been asked to put together some further information to cover the most recent developments and next step questions that we have coming through.

If you have any specific enquiries that are not addressed in this document we are still here to help you so do get in touch.

  1. Q. How long do I have to keep my furlough letters?

    5 years – please make sure you keep copies of the signed agreements this may be important if you are audited in the future. Furlough leave must be seen as a change of status and will therefore require consent or a contractual right. The guidance requires that employers agree the leave with the employee and confirm their new status in writing.
  2. Q. My Employees are on indefinite furlough is this okay?A. Yes if your letter advised them of that and they agreed – A lot of employees are furloughed indefinitely and some to the end of the scheme which is currently scheduled to end on June 30th 2020.
  3. Q. What about employees who started in March 2020?

    The scheme does not apply to anyone starting work after 19 March 2020. Also, anyone who had not been paid by 19 March 2020 will be excluded because of the requirement for an RTI payroll submission by this date. This means monthly paid staff who commenced work at the beginning of March will not be caught by the scheme, although weekly paid staff will be caught.
  1. Q. I might need my furloughed employees to do some work. Can I bring them back?A. Yes you can. You can only reclaim furlough pay for blocks of 3 weeks but after that say you brought an employee back in for a week or two to carry out works that need completing you can then re- furlough them if you need to. Do remember the end date however – you may need to keep this in mind for the 3-week block reclaim.There is no minimum amount of time and employee can come back as far as we are aware.You must communicate with the employee and you may need to obtain their further consent to furlough if you start again. Take some advice on your communications.
  2. Q. When I bring furloughed staff back should I write to them?A. Yes you should communicate with them formally and set out their terms and when you require them to start at work with associated arrangement confirmation.
  3. Q. I cannot afford to bring employees back full time when the furlough period ends. What can I do?A. You could speak to them and if possible, agree a change in terms. They may be amenable dependant on their circumstances. These can be temporary or permanent changes.The key is consent; you should not unilaterally impose changes this could lead to claims for breach of contract and constructive dismissal. Speak to your employees to see what ideas they have.
    Do they need parental or other leave?
    As a last resort you can consider redundancy procedures. This is not prohibited during furlough and the law has not changed.If you require redundancy advice, please see our fact sheet circulated previously.If you are considering making 20 or more people redundant in a 90-day period you may need to collectively consult. Please take advice before proceeding in these circumstances – Statutory provisions apply.
  4. Q. Can I give notice to employees on furlough?A. Yes you can. You still need to carry out any dismissals fairly. As far as we are aware you can also claim furlough pay for the notice during or part of it to end June and it is our best practice advice that you make up the additional 20% of any notice pay to avoid any future claims
  5. Q. Can employees who are union or non-union representatives still represent employees whilst on furlough?
    A. Yes they can. This means that they can, for example, accompany colleagues to disciplinary or grievance meetings, or redundancy consultations.
  6. Q. Is there a requirement to consult with employees?

    If you are proposing to furlough 20 or more employees in circumstances where they would have otherwise made redundancies, then the requirement to collectively consult seems likely to have been triggered. The special circumstances defence may be available to employers if there is insufficient scope to consult properly with employees, given these extraordinary times.