COVID-19 - Employment Rights Q&A - Paul Doran Law | Furlough Scheme

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COVID-19 – Employment Rights Q&A

Below is a selection of recent questions we have received from people regarding their employment rights during the ongoing Coronavirus crisis. The questions relate mainly to the furlough scheme although there are other specific issues. Furlough

Please note that the answers are not to be taken as formal advice and specific legal advice on your situation should always be sought:

  1. Am I entitled to furlough pay?

In short, any employee who was paid under a PAYE scheme on or before 28 February 2020 is eligible provided the employer qualifies for the scheme.

The guidance for employers says that employers can access the furlough scheme if:

“…you cannot maintain your current workforce because your operations have been severely affected by coronavirus (COVID-19), you can furlough employees…”

This suggests that the scheme is only available to employers who would be required to make staff redundant but for the scheme.

More detailed information on the furlough scheme is here.

  1. Am I entitled to request annual leave when on furlough leave? 

This is a controversial area. Unhelpfully, the government has not provided an answer to the question. It is a topic which has caused much discussion amongst employment lawyers in recent days.

ACAS appear to suggest that employees cannot be on annual leave when on furlough leave. Other employment lawyers such as Daniel Barnett believe that you are entitled to take holidays when on furlough leave.

On balance, it appears that the scheme probably applies to annual leave although this is not certain.

The question could be very important because if you are entitled to change from furlough pay to holiday pay, your employer may be required to pay 100% of your normal pay which could be much higher than your furlough pay.

We suggest therefore that if you are on furlough leave, you make a formal request for annual leave if you wish to take it. If the request is refused, you may be entitled to bring a claim particularly if your employer informs you that you are on annual leave yet pays you only 80% of your pay.

We suspect this is one area that could see a lot of litigation in the coming months and years.

  1. Can my employer make me take holidays when on furlough leave? 

As noted above, it is not entirely clear whether employees are entitled to take annual leave at all when on the furlough scheme.

If we assume that they are, the answer to this question is almost certainly “yes”. The Working Time Regulations allow an employer to insist that an employee take annual leave on certain dates provided they give twice the notice that they wish the holiday to last for. This means that if your employer wants you to take 1 week of annual leave, they must provide you with 2 weeks notice.   

  1. My employer has cancelled my holiday and placed me on furlough leave. Are they entitled to do this? 

An employer is entitled to cancel your booked holiday provided they give you notice amounting to the same amount of days that you have booked off. This means if you have one weeks holiday booked, your employer can cancel that with one weeks notice.

The difficulty you face in this situation is that it is unlikely that you will be entitled to any compensation even if the employer acts in breach of the law. Your only real way of seeking remedy would be to resign and bring a claim of constructive dismissal arguing that the employer breached the implied duty of trust and confidence in your contract. See more here. However, given the circumstances, such a step would be very risky as you would be left immediately without income and it is far from certain whether an Employment Tribunal would find in your favour.

The issues discussed above on whether you are entitled to be on annual leave during furlough leave are also relevant.

  1. My employer has told me that I am no longer employed as they have closed due to the coronavirus. 

If your employer has ceased trading altogether as a result of COVID-19, you may be entitled to a redundancy payment. This will apply if you have been employed for two years or more. If the employer is insolvent, i.e. it has no money to pay its bills, you are entitled to claim your entitlement directly from the state. Please contact us by one of the methods to the right of this page as we can assist you with this.

If the employer has closed temporarily and intends to resume trading after the crisis, you may be entitled to bring a claim for unfair dismissal. You will need to have been employed for two years or more (one year in Northern Ireland). If you have been employed for less than this, you are unlikely to be able to bring a claim unless you believe discrimination arises. See more on discrimination here 

  1. Can my company ask me to return to work 2 weeks after starting furlough leave? 

The guidance provides that furlough leave must last for a minimum of three weeks. However, no detail is provided on what the sanction, if any, should be on any employer who seeks to cut this period short.

The only likely means of seeking a remedy for you would be to resign and take a claim of constructive dismissal. You would need to show that the employer has breached the implied duty of trust and confidence in your contract. We are doubtful that such a claim would succeed. You would  also be left immediately without income therefore such a step is very risky.

There is nothing in the guidance that would prevent an employer asking an employee to return to work after three weeks of furlough leave.

Employers do have a duty of care towards their employees and all contracts include a clause, whether written down or not, that employers are required to take care of the health and safety of their staff. If the employer is placing you at risk, you may have grounds for a constructive dismissal which would be much stronger in these circumstances. 

  1. Do I have a legal right to be placed on furlough leave? 

In short, no. It is for the employer to decide whether it deems it necessary to place staff on the furlough scheme. See more details here. 

  1. I returned to work from maternity leave on 2 March which just before my employer closed. Am I entitled to furlough leave? 

Yes. The criteria is that provided you were paid under a PAYE scheme on or before 28 February 2020, you are eligible. Provided that applies in your circumstances, and it appears it would, your employer will be entitled to claim furlough pay for you. See more details here. 

  1. I work for an agency. All permanent staff have been placed on furlough leave but the agency staff have been offered nothing. What are my rights? 

This depends on the terms of your contract but unless there is an obligation on the part of the agency to provide you with work, a failure to provide work in these circumstances is unlikely to amount to an unfair dismissal. 

  1. Can my manager make me work if I am self-isolating?

It depends on the circumstances. If you have been displaying symptoms or have been advised to self-isolate on medical advice, you are entitled to sick leave.

If you are not within those categories, it may still be necessary for you to work. Note however the issues relating to health and safety addressed at Q.6 above. There is more detail on this issue here.

The guidance for employers says that employers can access the scheme if they

“…cannot maintain your current workforce because your operations have been severely affected by coronavirus (COVID-19), you can furlough employees…”

This suggests that the scheme is only available to employers who would likely be required to make staff redundant but for the scheme.

  1. Can my employer change my terms and conditions when I return from furlough leave? 

The only circumstance in which your terms and conditions can be changed is with your consent. If you do not consent and the employer seeks to enforce them, you may be entitled to resign and take a claim of constructive unfair dismissal. See more on this topic here.

  1. I have had to stop working due to a lack of childcare. My employer has dismissed me. Is this unfair dismissal? 

The updated government guidance specifically states that employers are entitled to place staff in your position on furlough leave. See the section on employees with caring responsibilities here.

If you have been dismissed, we suggest that you forward that link to your employer and ask that they re-hire you and place you on furlough leave. If they refuse to do so and you have been employed for more than two years in GB or one year in NI, you are likely to have a claim for unfair dismissal.

  1. I’m an apprentice. Can my training continue?

The government has produced additional guidance on this here. In short, apprentices are still entitled to continue training even when on the furlough scheme so long as this does not provide a service or generate income for the employer. Extensions and breaks in training will be permitted if required

  1. My employer has told me that I need to claim SSP myself directly from the government. 

This is incorrect. SSP is paid to employees directly by the employer. Indeed, employers are no longer even entitled to claim this back from the government although the rules have changed where COVID-19 is the reason for the illness. See more on your sick pay rights here.

Further reading

For more information on the furlough scheme, you might find our other articles useful:

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