Furlough and Work
Furlough and Work
Furlough and work
In the various iterations of the guidance there have been references to the fact that staff cannot undertake work while on furlough. This may seem straightforward, but has some potentially far reaching implications.
Background
The UK Government has said;
“To be eligible for the grant, when on furlough, an employee cannot undertake work for, or on behalf, of the organisation or any linked or associated organisation. This includes providing services or generating revenue.”
and
“An employee has not ceased all work for an employer if the employee works for a person connected with the employer…or otherwise works indirectly for the employer.”
and
“An employee has been instructed by the employer to cease all work in relation to their employment only if the employer and employee have agreed…that the employee will cease all work in relation to their employment.”
In the guidance to employees, the Government has also said:
“If you’re concerned that your employer is abusing the scheme you should report them. This could include your employer claiming on your behalf and not paying you what you’re entitled to, being asked to work whilst on furlough, or making a backdated claim that includes times when you were working.”
Work
To us, this means that you should adopt a strict approach, or risk your employees reporting you to HMRC for fraud.
The reference to a requirement that employees on furlough must “cease all work” is a clear direction that they should not be doing anything. In our view, this includes answering calls or emails or even forwarding messages for others to deal with.
Instead, for those staff on furlough leave, you should switch off their access to your systems and have a way of ensuring that calls and emails are either monitored by someone who is not furloughed and/or automatically forwarded. If your staff share a personal mobile number with your clients/customers/suppliers, this will be much harder to impose compared to those businesses where work phones are provided.
Redundancy
Another issue this creates is in relation to consulting over redundancies. Any manager who needs to conduct assessments/consultations on behalf of the business should not be on furlough leave when undertaking this work.
What remains unclear is whether the employee needs to come off furlough while you consult with them. Does attending consultation meetings amount to the employee undertaking work?
At this stage, we do not think it does, as the employee is not providing services nor generating revenue during such a process. To take the example to the extreme, if redundancy consultation with an employee is not allowed, an employer would also not be able to communicate discuss or update staff about the end of furlough leave.
Another potential issue is whether the employee’s chosen work colleague can accompany the employee on any such consultation meetings (video calls). That has now been addressed, as the guidance says:
“Whilst on furlough, employees who are union or non-union representatives may undertake duties and activities for the purpose of individual or collective representation of employees or other workers. However in doing this, they must not provide services to or generate revenue for, or on behalf of your organisation or a linked or associated organisation.”
This supports our conclusion that consulting with an employee who is “at risk” of redundancy is allowed, provided the employee does not provide services to or generate revenue for, or on behalf of your organisation or a linked or associated organisation.
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.
6th May 2020. © Kilgannon & Partners LLP
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