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Flexible Furlough
Flexible Furlough
The Government’s guidance on the availability of flexible furlough was updated on 12th June.
At first blush, this seems to be exactly as described; allowing total flexibility:
“From 1 July, employers can bring furloughed employees back to work for any amount of time and any work pattern, while still being able to claim the grant for the hours not worked.”
However, as ever, the devil is in the detail and there are limitations in place for how this can be used. This includes:
1. No-one new.
From 1st July, you can only claim for “…employees that you have successfully claimed a previous grant for.” “This means they must have previously been furloughed for at least 3 consecutive weeks taking place any time between 1 March and 30 June 2020.”
Where no-one new can now be placed on furlough for the first time (the cut-off date was 10th June), it means the people for whom you can claim will be limited. The only exception to this is anyone returning from statutory parental leave.
2. 3 week rule
If an employee (who must have previously been furloughed) comes back to work and starts a new period of furlough leave before 1st July, then they must still remain on furlough leave for a minimum of 3 weeks. The guidance gives the following example:
“…a previously furloughed employee can start a new furlough period on 22 June which would have to continue for at least 3 consecutive weeks ending on or after 12 July. After this the employee can then be flexibly furloughed for any period.”
3. Claims must be for at least a week
Although flexible furlough agreements can last any amount of time, the period that you claim for must be for a minimum claim period of 7 calendar days.
4. Agreement?
The guidance says; “If you flexibly furlough employees, you’ll need to agree this with the employee (or reach collective agreement with a trade union) and keep a new written agreement that confirms the new furlough arrangement.”
We’ve had this issue previously and the reference to “agreement” is misleading, as the employees do not need to formally agree to flexible furlough; indeed, through their conduct of refusing you will quickly know if this is not agreed by your staff (not that here’s much they can do if you choose to adopt flexible furlough). You should record in writing that you are adopting flexible furlough and how it will work.
5. Records
You are required to keep the written record of how you use flexible furlough for five years. You must also keep records of how many hours each person works and remains furloughed for.
6. Furlough restrictions
The current limitations about work continue to apply so while furloughed you “…cannot ask them to do any work for you that:
• makes money for your organisation or any organisation linked or associated with your organisation
• provides services for your organisation or any organisation linked or associated with your organisation”
Your employee can:
• take part in training
• volunteer for another employer or organisation
• work for another employer (if contractually allowed)
7. Maximum number
From 1st July, there is one further limit to be aware of, which means the maximum number of people you can claim for in any single period “…cannot exceed the maximum number of employees you claimed for under any claim ending by 30 June.”
For example, if you have previously submitted three claims between 1 March 2020 and 30 June, in which the total number employees furloughed in each respective claim was 30, 20 and 50 employees, then the maximum number of employees that you can furlough in any single claim starting on or after 1 July is 50.
While the flexible furlough scheme should work very well to allow businesses to flex their staff as demand increases with lock-down easing, there are a few issues to be aware of and consider, especially as we transition to the new rules from 1st July.
If any of the issues discussed above are a concern to you, or if you would like specific advice, please contact the writer, Matthew Kilgannon, via mk@kilgannonlaw.co.uk
or on 01483 388 901.
Kilgannon & Partners LLP is a specialist employment law firm where our experienced employment law partners offer practical, prompt and professional employment law and HR advice.
19th June 2020. © Kilgannon & Partners LLP
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