Top 10 Furlough questions and answers. What is the Government job retention scheme?
The Government’s Coronavirus Job Retention Scheme (“Scheme”) makes it easier for you to hold on to your job during the COVID-19 Crisis but your employer must agree to put you on “furlough”. Your employer then continues to pay you up to 80% of your monthly salary capped at £2,500 less tax and deductions and they recoup what they pay you from the Scheme. You don’t need to apply to the Scheme, the employer does that.
What does ‘Furlough’ mean?
“Furlough” is an American term which comes “verlof”, a Dutch word which means “leave of absence”. In a typical furlough situation you are laid off or suspended temporarily, you remain employed, but you are not being paid. If your contract of employment does not allow your employer to lay you off or suspend you, then you may be able to argue that you have been dismissed and bring a claim for either “wrongful dismissal” or “unfair dismissal”.
The Scheme allows
- your employer to furlough you without that decision being a potential dismissal and
- (ii) you to retain your job and your rights arising from your “continuity of employment”
Can I be forced to take ‘Furlough’ leave?
No, you cannot be forced to take furlough leave.
However, if you do not agree to be furloughed, then your employer can protect themselves by deciding to dismiss you on the ground of redundancy, in which case you would be entitled to work your notice or receive a Payment in Lieu of Notice (PILON). If you have been employed for more than two complete years you will be entitled to a Statutory Redundancy Payment – you can work out how much you would be entitled to by clicking on this link to the Government calculator website page:-
Does my employer need to consult with me about putting me on Furlough?
If your employer is behaving reasonably and does not wish to make you redundant then they will try to furlough you and allow you to be paid under the Scheme.
Most reasonable employers will consult you about putting you on furlough and obtain your agreement to that happening so that you and they can take advantage of the Scheme.
What can I do if my employer tries to lay me off and deprives me of the benefit of the scheme?
If your contract of employment permits your employer to lay you off or suspend you without pay then they could decide to do so without even consulting you. They might take this step so as to avoid making you redundant and having to pay you your notice monies and any Statutory Redundancy Payment. However this would not be a wise step.
However if your employer did not consult with you and decided to lay you off you might be able to argue that any decision to make you redundant was not fair while the Scheme is in operation. Your employer might be able to argue that they were entitled to make you redundant in any case regardless of the availability of the Scheme but that would depend on the facts of your particular case. An employer cannot be expected to remain in business simply because the Scheme is in operation. An employer could decide that it wants to close down its business for its own financial reasons and to make its staff redundant regardless of the COVID-19 crisis and the Scheme.
If your employer does not have an argument for making you redundant and still decides not to put you on furlough, thereby depriving you of the benefit of the Scheme you may be able to argue that your employer has committed a breach of the fundamental term of your contract which action entitles you to resign and present a claim for constructive dismissal.
It is important to bear in mind that the Scheme allows employers to retain employees without having to fund their salaries and any reasonable employer seeking to retain employees will seek to furlough them and take advantage of the Scheme.
We therefore consider that you could argue that there is now an implied fundamental term in your contract of employment that your employer should consider furloughing you (if they do not have a genuine case for making you redundant) so that you and they can take advantage of the Scheme rather than laying you off or suspending you without pay. Depriving you of the benefit of the Scheme would probably be a breach of a fundamental term of your contract which breach would allow you to resign and present a claim for constructive dismissal against your employer.
What can I do if I do not want to take Furlough leave?
In our view, if you are offered furlough leave and the chance to benefit from the Scheme, then you should grab it.
If you are lucky and you have the opportunity of taking up another secure job then you could resign from your current position and move to that new job. However you need to bear in mind that by moving you would lose any protections which you currently have acquired from having been continuously employed by your current employer for longer than two years.
How do I qualify for the Government job retention scheme?
The Scheme will potentially cover all staff paid through PAYE who have been on the payroll since 19th March 2020 on any type of contract including full-time and part time, agency contracts (so long as they are on PAYE contracts) and employees/workers on flexible or zero hours contracts.
You can find more guidance on the Scheme by clicking on the following link: –
How much will I receive on the Government job retention scheme?
In order to qualify for the Scheme you must be placed on furlough by your employer for at least three weeks.
If you qualify for the Scheme then your employer pays you your monthly salary. Your employer then claims 80% of your normal monthly salary (subject to an overall cap of £2,500 per month) from the Scheme. Your employer also could decide to pay you more than 80% of your salary or the £2,500 monthly cap.
Please remember that you will continue to pay tax and national insurance contributions on whatever salary your employer pays you.
If I have been made redundant, can I ask my employer to take me back on Furlough?
If you were on the payroll as of 19th March 2020 and are otherwise eligible for the Scheme, your employer could review any earlier decision (made after 28 February 2020) to make you redundant and decide to take you back if they can show that the introduction of the Scheme has caused them to change their plans.
However this could be complicated by any appeal you are making arising from any decision to make you redundant in the first place. You might have a claim for unfair dismissal against your employer which could allow you to insist on a settlement where you would receive a compensation payment rather than retaining your job security for the duration of the Scheme.
How long will the job retention scheme last?
The Scheme is expected to be up and running by the end of April and will last for three months from first of March 2020.
Contact our Employment Solicitors in Ruislip, Middlesex
If you have any queries about your employment rights during the current COVID-19 crisis, please contact us. We are offering a special one off initial consultation for up to one hour (to include reading documents and discussing your matter by telephone or video link) at a reduced price of £99 plus VAT of £19.80 = £118.80, provided you instruct us by 24 April 2020.
To arrange an initial appointment, call us today on 020 3856 8156 or complete our online enquiry form and we’ll be in touch.