Q & A
- How long will the Job Retention Scheme be available for?
At present, the Government have indicated it will last for 3 months from March 1st to the end of May 2020
- Can employees be brought into the scheme who are already on sick leave or receiving SSP/CSP due to self-isolation?
When employees are fit to come back to work, if there is no work for them, then they should be eligible to enter the scheme.
- What should an employer do if an employee refuses to go on furlough leave and the firm has complied with all Government COVID-19 guidelines?
Call PJH Law for advice as the answer depends on the terms of their contract of employment, but it’s unlikely as 80% is better than a guarantee payment of £30.00 per day for the first 5 days.
- If an employee requests for their role to be made redundant, how does an employer manage this?
Call PJH Law for advice but the idea of the retention scheme is to retain employment. An employer would be well within their rights to say no subject to the lay off provisions.
- If an employee has a pre-booked holiday during their furlough leave, does an employer have to let them rebook for when they can return to work?
Difficult one as no clear guidance from HMRC on whether an employee can be on furlough leave and annual leave. ACAS suggest that they cannot be on both types o leave, pre-existing caselaw suggests they can be. We’d say roll the dice and say pre-booked holiday must be taken as booked. The worst that can happen is you have to allow it to be taken. The best that can happen is the holiday is used up during Furlough. Holiday pay taken during Furlough should probably be topped up to normal pay.
- How much notice should an employer give an employee to return to work?
There is no legal guidance on this. Therefore what is reasonable could be as little as a day and depends on when how much lead time the government give on lifting restrictions and any reasons the employee may have for needing longer, such as making childcare arrangements.
- If you need to select employees to go on furlough leave, do you need to use selection criteria to avoid any discrimination claims? If so, what would you suggest?
If you have a collective group and you do not need to Furlough all of them, then you would need to go through some form of objective assessment based on business need. Where possible, ask for volunteers first. It is fine to reserve a right to reject volunteers in the same way as you would when asking for volunteers for redundancy.
- If more than 20 employees are being furloughed is collective consultation consultation required?
Yes arguably so but the shape and form of that is discussed here.
- What do employers have to pay an employee if they have to self-isolate for a second time?
An employer would have to pay a minimum of SSP.
- What are the working time regulation changes that impact carry-over of untaken statutory annual leave?
Holiday continues to accrue during Furlough. The new Government guidelines have allowed the employee to carry over at least the first 4 weeks of annual leave for up to 2 years.
- What is the new Emergency Volunteering Leave?
This is where an employee can request leave to go and work for an appropriate authority, such as the NHS or Social Care. They have to give 3 days’ notice, and they do need to produce a formal document from whatever authority they are going as proof. The leave needs to be in a block of a minimum of 2 weeks up to 4 weeks maximum. At this time, the employer is obliged to accept the request. All terms of employment are protected except pay. Employers do not have to pay employees taking emergency leave and employees can claim compensation for loss of earnings from the authority they are volunteering for.
- How does furlough leave impact death in service policies?
Check with your insurer as to how basic pay is calculated if an employee is on furlough and dies.
- Do I have to declare the furlough pay I receive from HMRC in my accounts?
Yes. You have to declare the furlough pay HMRC pay to you as income in your accounts and you record the sums you pay to employees as business expenses in the normal way.
- What does the term “Furlough” mean?
When a company doesn’t have work for its workers for a period of time, they can put them on temporary leave, called a furlough.
- Can an employee be on short-time working, take work elsewhere in the business or externally and still be enrolled in the Job Retention Scheme?
No, this is not possible. One Caveat: unless that was the employee’s previous working practice or had a part-time job prior.
- Instead of immediately instigating the Job Retention Scheme, is it possible to allow accrued but untaken holiday to be taken at full pay?
Yes, this may be possible but would be discretionary and needs to be agreed with your employer and be consistent with the detail of the scheme when fully announced by HMRC.
- If I am shielding in line with public health guidance, can I still be furloughed?
Yes, this may be possible.
- If I become sick or self-isolating while on furlough leave, will I receive my company sick pay?
While on furlough leave employees will be paid under government guidelines. When furlough is over you would revert to what you would have been paid if sick and unable to work.
- What is the current Statutory Sick Pay (SSP) I will receive?
Employers must pay Statutory Sick Pay (SSP) to employees and workers when they meet eligibility conditions. The 4 days waiting time does not apply and SSP commences on day 1. You can get £94.25 (£95.85 from 6 April 2020) per week Statutory Sick Pay (SSP) if you’re too ill to work. It’s paid by your employer for up to 28 weeks.
- Can an employee opt-out or change my current pension contributions?
Ordinarily, you can reduce your contribution at any time. However, those that are in auto-enrolment there may be other factors. i.e. If you opt-out, then you may not be able to opt back in. However, seek guidance from your pension provider. For employees on Furlough Leave, your employer will pay the minimum 3% auto enrolment minimum employer pension contribution on the Furlough Pay you receive. Your employer can recover this under the CJRS. Your employer will also deduct your normal 5% contribution too, although the amount will be 80% of the usual amount if your pay is only paid at the 80% minimum.
- Can an employee opt-out of their other current voluntary deductions?
You would need to discuss this with your employer, and it would depend on the benefits you wish to opt-out of.
- Does holiday still accrue during a period of furloughed leave?
Yes, holiday does accrue as normal.
- If I am furloughed, am I able to do any volunteer work or training?
Yes. An employee needs to give 3 days’ notice and produce a formal document as proof from whatever authority they are going to work with. The leave needs to be in a block of a minimum of 2 weeks up to 4 weeks maximum. At this time, the employer is obliged to accept the request. All terms of employment are protected except pay and compensation for loss of earnings is via the Government. Your employer may also allow you to do other voluntary work outside the statutory Volunteer Leave scheme. Employers can require you to undertake training whilst furloughed, but you must be paid the minimum wage above for any time spent training.
- I am due to go off on a period of maternity / adoption / paternity or shared parental leave, what happens now?
The standard policy should apply.
- How will my furlough payments be calculated?
A minimum of 80% of your gross monthly salary capped at £2,500 pcm (gross).
- What should I do upon the expiration of my Furlough leave?
Your employer should be in contact with you before your furlough expiration with instruction of whether the furlough period has been extended, or if you are required to attend work.
- How much notice should my employer give me to return to work?
There is nothing contractually, but it is what would be seen as reasonable. 24-48 hours may be deemed to be reasonable depending on your personal circumstances which may include, for example, the need to make childcare arrangements.
- Should my employer automatically enrol me onto the Job Retention Scheme?
Yes. Your employer should automatically enrol you.
- Can I refuse to go on furlough leave, and how do I do this?
Yes, you can refuse. However, you may be worse off, especially if your employer has a contractual right to lay you off with no pay other than 5 days’ guarantee pay of £30.00 per day
- Can I refuse to go on furlough leave and request redundancy or paid holiday instead?
Yes, you can request it; however, there is no obligation for your employer to honour that request.
- If I am placed on furlough leave what happens to my pre-booked holiday if they fall within the same time frame?
This is unclear. You can suggest to your employer that it should allow you to reschedule, but it is unclear whether your employer has to accommodate this.
- If I am on Furlough leave for more than 4 weeks, or 6 weeks within a 13 week period, can I request that my role is now redundant and that process should commence?
No. If you are on furlough, you do not meet the definition of lay off or short time working and so are not entitled to demand redundancy pay after 4 or 6 weeks and even if you did, your employer could defeat this right via the technical counter-notice procedure if it believes work will return to normal soon.
- Will I pay income tax on my furlough pay?
Yes – normal tax and NI will be deducted, so if you are subject to the £2,500.00 cap, you will receive around £1,925 net per month in the 20/21 tax year if you are on a 1250L tax code, have an auto enrollment pension with a 5% employee contribution and have no other taxable benefits or taxable income.
- Am I entitled to the National Minimum Wage whilst on furlough leave?
Only if you are asked to do training. As you are on furlough you are not working and thus unfortunately not entitled to the NMW. You will be paid 80% of your pay, capped at £2,500.00 gross, and this applies to those earning the national minimum wage. The arate is due to increase on 6 April 2020 and it might be arguable this increase will not impact furloughed staff as they are not working.