FAQs for employees on the Coronavirus Job Retention Scheme.

This information is intended as general guidance. If you have any specific issues, we would strongly advise you to seek legal advice.

 

 1. The scheme means that employees can be “furloughed”. What exactly is furlough?

It follows a term that is commonly used in the US, where an employer chooses to insist that an employee does not work. Under the scheme, an employee is furloughed if they do not work because of circumstances arising as a result of COVID-19.

 

2. Is there a minimum period that furlough leave must last?

At least three weeks.

 

3. Can my employer take me on and off furlough leave?

Yes, though until the end of June 2020 each period of furlough leave must last at least three weeks. From 1 July 2020, “flexible furlough” will then be allowed for any amount of time and any shift pattern, as long as this is agreed.

 

4. How long must I have been employed by my employer to benefit from the Job Retention Scheme?

You must have been employed as at 19 March 2020, and on your employer’s PAYE payroll.

 

5. I am a part time / agency / zero hours worker: can my employer furlough me and claim my wages from the Job Retention Scheme?

Yes. The Scheme will benefit full-time employees as well as part-time employees, employees on agency contracts and employees on flexible or zero-hour contracts. There is a different scheme for those who are self-employed.

 

6. I was made redundant after the Job Retention Scheme was announced: can I still benefit from the scheme?

Yes, provided your employer rehires you, they can claim from the Job Retention Scheme.

 

7. My employer reduced my hours and/or pay: can they claim from the Job Retention Scheme to top up my wages?

You need to be furloughed for your employer to claim under the Scheme. If you have agreed to reduced hours and/or pay, but you are still working, your employer will not be eligible to claim under the Scheme.

 

8. My employer has chosen only to furlough all part-time staff, who are all female: is this discrimination?

Your employer may be acting unlawfully, depending on the circumstances, and we would recommend you take legal advice on your specific circumstances.

 

9.How will my employer communicate with me to confirm I am to be furloughed?

Your employer should write to you to confirm you are furloughed.

 

10. Can I carry out any work for my employer when I am furloughed?

No, you cannot carry out any work for your employer when you are furloughed, though you are allowed to undergo training as long as you do not provide services to, or generate revenue, for your employer.  

 

11. Can I volunteer whilst I am furloughed?

Yes, you can volunteer, provided this doesn’t provide a service or generate revenue.

 

12. I am on unpaid leave: can I be furloughed?

Provided you were placed on unpaid leave after 28 February 2020, you can be furloughed. If you were on unpaid leave prior to 28 February 2020, you cannot be furloughed until the date when it was agreed you would return to work.

 

13. I am self-isolating in line with the Government guidance due to COVID-19 symptoms: can I be furloughed?

If you are currently on sick leave or self-isolating, you should be paid statutory or contractual sick pay. Once this period has ended, you can be furloughed.

 

14. I am shielding myself from COVID-19 by staying at home in line with the Government guidance because I fall within a vulnerable group: can I be furloughed?

Yes, you can be furloughed.

 

15. I have more than one job: can I be furloughed from both?

Yes, each job is considered separate, therefore you can be furloughed by each employer.

 

16. I am on maternity leave: can my employer claim any of my salary from the Job Retention Scheme?

You will still be entitled to statutory maternity pay or maternity allowance, if you are eligible.

If your employer offers enhanced maternity pay related to your earnings, your employer can claim for this from the scheme. This also applies to contractual adoption, paternity, shared parental and parental bereavement pay.

 

17. How much money will my employer be able to claim?

Until the end of July 2020, the government will pay 80% of wages up to a cap of £2,500 as well as employer National Insurance Contributions (ER NICs) and pension contributions for the hours you don’t work.

 

18. How much will my employer be able to claim from August onwards?

In August, the government will pay 80% of wages up to a cap of £2,500. This will then go down:

  • in September, the government will pay 70% of wages up to a cap of £2,187.50; and
  • in October, the government will pay 60% of wages up to a cap of £1,875.

Your employer will have to pay ER NICs and pension contributions from August onwards.

 

19. What if my salary includes fees, overtime, bonuses or commission: will those be included in the calculation?

Only where they are part of your regular pay and non-discretionary.

 

20. Does my employer have to top up my salary to 100%?

Your employer is not required to top up your salary under the Scheme. It is open to your employer to decide if they wish to top up your salary. However, if your employer does not pay your full salary they will almost certainly be in breach of contract, which would give you the potential basis to raise a claim. Therefore, your employer should try to reach agreement with you if they will not pay full salary.

 

21. My pay varies, do how will my employer calculate my earnings?

Your employer should use the higher of: (a) your earnings from the same month in the previous year, and (b) your average monthly earnings from the 2019/20 tax year. If you started employment after 6 April 2019, your employer should calculate your average monthly earnings since you started work.

 

22. If my employer pays me less salary, I will be paid less than the National Minimum Wage (NMW) or the National Living Wage (NLW): can they do that?

Yes, your employer can still pay you the relevant percentage of your salary under the Scheme even if this brings you below NMW or NLW when you are furloughed. If you carry out any training for your employer whilst you are furloughed, then this should be paid at the full NMW or NLW.

 

23. Can my employer make me redundant when the Job Retention Scheme ends?

There is nothing to prevent your employer carrying out a redundancy process when the Scheme ends (or even before the Scheme ends). Your employer will have to consider the circumstances of its business and should ensure that any redundancy process is carried out fairly.

 

24. Will I still retain all of my employment rights whilst I am furloughed?

Yes, you still remain an employee whilst furloughed and you retain your employment rights.  

 

How can McGrade & Co. help?

As a firm of solicitors dealing only with employment law, you can be confident that we have a leading understanding of legal issues that arise in the workplace. Our specialised position is even more valuable at a time of unprecedented change in employment practices during the COVID-19 pandemic.

We advise on the full range of employment issues, from the stage of recruitment through to employment tribunal proceedings and appeals. We will ensure your case is dealt with as quickly and efficiently as possible.

Our priority is to resolve disputes quickly and to enable those involved to put the difficulties behind them. If you choose to instruct us, we will focus on how matters can be resolved. If we are asked to advise on a grievance, we will try to find a solution that avoids the need for employment tribunal proceedings, where possible.

If employment has come to an end, and we can negotiate severance terms that are acceptable to both parties, we will do so. If the matter can only be resolved by employment tribunal proceedings, we will use our experience and expertise to ensure your case is fully prepared and well argued before the tribunal.

To find out more about the particular services we offer and how we can help you, please contact us on 0141 221 4488.

 

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