Coronavirus FAQS

Read about the template letters


I have received a number of requests from employees to help them with wording for an email or letter to request furlough leave. Therefore, I have drafted a template letter for this which you can download. Strictly speaking, it is up to an employer to decide whether or not to grant furlough leave, but on 25 March, a joint statement was issued by the Scottish Government and Scottish Trades Union Congress on fair work expectations where it was stated that, ‘We have high expectations of how fair work principles should be applied during the current crisis. This means an approach where workers, trade unions and employers work together constructively to reach the right decisions on all workplace issues that arise throughout this crisis.’ and, ‘These are exceptional times and for this reason we are asking employers, unions and workers to agree appropriate arrangements that ensure that workers are treated fairly.’ You can read the joint statement here. In addition to this, the UK Government's guidance says that, 'if an employer cannot cover staff costs due to COVID-19, they may be able to access support to continue paying part of an employee's wage, to avoid redundancies.' So, strictly speaking, furlough leave is to avoid redundancies, but the current guidelines are fluid and may not only apply to redundancies. For example, Martin Lewis (Money Saving Expert) who has spoken to the Government about this said, 'The key thing to understand is the state is looking to support people. It wants this to be a broad sweep of support to gather people up. It's looking to embrace people who need it, not loophole them out." Moreover, leading commentators have said that they expect more guidance on this exact point from the Government soon and the Government is being lobbied to consider the specific strain placed on parents and carers during this time. There are two templates, one is to request furlough leave and the other is to make a statutory request for flexible work. A request for flexible work may be better for you since employees have a statutory right to apply for flexible working if they’ve worked continuously for the same employer for the last 26 weeks (and have not made a request in the previous 12-months). In the current circumstances, if you do not want to be at work during the pandemic, and you want to see if your employer will agree to letting you work from home, then you may want to consider making a flexible working request to work from home due to the coronavirus pandemic. There are many reasons why an employee might make a request for flexible working, but since this is a request to work from home I have only covered this type of request in the template.





Updates

4 April

 

HMRC has updated the Coronavirus Job Retention Scheme as follows:

  • employees can start a new job whole on furlough. This means that you could receive 80% of your old wages from your old employer and 100% of your new wages from your new employer. This was not prohibited in the earlier guidance, but the new guidance expressly permits it. The guidance does say it has to be allowed under the old employment contract with your old employer, but presumably, your old employer can waive that;

  • an employer can reclaim 80% of compulsory (presumably meaning contractual) commission back from HMRC, as well as basic salary. This must only relate to commission from past sales as an employee on furlough cannot be selling while on furlough;

  • employers can reclaim 80% of fees (whatever that means) from HMRC. The previous guidance said they could not;

  • this 80% does not include non-monetary benefits, for example, the value of health insurance or a car;

  • although we knew this already, company directors can be furloughed. They can still perform their statutory duties, but they cannot carry out other work for the company;

  • employees can be furloughed multiple times, for example, you can be furloughed, and return to work, then re-furloughed (note: each furlough period must be at least three weeks;

  • employers must notify employees of their furlough status in writing (although it would have been good practice to do so, previously this was not required), and a record of this written notification for five years.

 

You can read the updated guidance here.

 

Some areas remain unclear, for example:

  • what do “statutory duties” actually mean for company directors?

  • under the Transfer of Undertakings (Protection of Employment) Regulations, are employees who transfer to a business after 28 February covered?

  • can employees take annual leave when on furlough, and what should they be paid? Here’s what I think the legal position is:

This issue of holidays will be important. For example, your employer can cancel any holidays or tell you when to take them. There are also issues about what happens to your holiday entitlement if you do not take your entitlement during the current holiday year. ACAS issued guidance on 31 March 2020 about allowing holiday to be carried over for two years to cover certain situations, including where employees who could not take holiday due to being furloughed. The guidance says that employers can ask employees to take holiday, for example, if they shut down the place of work. The case law supports this and experts believe that employers can ask employees to take holiday even during furlough periods. Those on sick leave and maternity/adoption/shared parental/paternity leave cannot be asked to take holiday, but being on furlough leave is more or less the equivalent to being on garden leave. Unless further guidance is issued by the government, there would seem to be no reason why an employer cannot ask an employee to take holiday during furlough. Finally, I know from significant litigation that employees must receive their normal pay (not furloughed pay) when on holiday which can include overtime and commission etc. provided it is regular and averaged out over the previous 12 months.

2 April 

Employees who can be put on furlough

The government has updated its guidance about employees who can be furloughed as follows:

Employees must have been on your PAYE payroll on 28 February 2020, and can be on any type of contract, including:

  • full-time employees;

  • part-time employees;

  • employees on agency contracts;

  • employees on flexible or zero-hour contracts.

 

The scheme also covers employees who were made redundant since 28 February 2020, if they are rehired by their employer.

The fact that an employee can be rehired is significant for employees who have left their employment, say to start a new job which they were unable to start, usually because the job offer was withdrawn. In effect, they can ask their old employer to furlough them. The old employer does not have to do this, but at least it gives them a choice.

31 March

 

Martin Lewis, Money Savings Expert tweeted:

“CONFIRMED: If u left a job after 28 Feb, that old employer can rehire you to furlough u. So if needed ask.

We knew this worked for those made redundant, but Treasury's just confirmed to us, this is allowed for those who left voluntarily (eg for a new job). 

Tell those affected”

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Gavin Booth

The Law at Work

19 Etive Court

Cumbernauld

Lanarkshire

Scotland

G67 4JA

The Law at Work is a not-for-profit Social Enterprise operated by Gavin Booth, specialising in employment rights advice, guidance, support and non-solicitor representation at Employment Tribunal and Regulatory Hearings in Central Scotland.

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