FAQs Archive - Page 2 of 7

Can an employer give someone notice during furlough and how this should be calculated?

Yes – there is nothing in the Scheme which prevents an employee being served notice of termination of employment. The amount of notice will depend on whether the employee has normal working hours and the contractual terms for the termination of their employment. If a contract of employment provides that an employer must give an employee at least one week more notice that the statutory minimum, then the notice pay will be based on their contractual pay.

The rules in this area are notoriously complex and it would be prudent for employers to seek specific advice on this point. For more guidance on dismissals please see https://lexleyton.co.uk/redundancies-and-dismissals/

Can an employer have staff working for 3 full days and laid off for 2, relying on the lay-off clause in the contract of employment?

Yes - although for lay-off to apply, there should be no provision of work in any day of lay-off.

Can an employer lay off its employees due to a lack of work?

They are both contractual and temporary solutions that can be used instead of redundancies. The ideal situation is for all contracts of employment to contain lay-off and short-time working clauses, which can be relied on in difficult times. If there are no such clauses, agreement should be obtained from employees.

Employees who are laid off are eligible for a small Guarantee Payment, but this is limited to a maximum of £150 over three months.

In the current situation, if workplaces are forced to close to prevent the spread of the coronavirus (COVID-19) virus, employers will still have to pay employees in most cases. Lay-offs and short-time working may give employers greater flexibility and savings on salaries during a temporary closure but employers can only implement lay-offs or short-time working if there are express, correctly drafted clauses in their contracts of employment or if they receive employee consent. Clauses should reserve the right to reduce pay according to the reduction of work. Employees may agree to this if they feel their only alternative may be redundancy.

The existence of furlough leave and pay is likely to have reduced the need for and popularity of lay-off, (especially where no lay-off clause exists) but it remains a possibility as an alternative to redundancy and may be popular with employers as the furlough scheme is scaled back and employer contributions increase.

Please download our full guidance on implementing contractual variations which includes detailed examples of how to navigate the different scenarios and types of clause.

Can an employer make an employee work fewer hours now and make this up by working extra hours in a later period?

This is possible, but would require an employee’s consent. If an employee is provided fewer days of work without their consent, they should be paid full pay – this rather defeats the purpose of the arrangement. Accordingly, consent should always be obtained before putting such an arrangement in place. Employees may agree to this where the alternative is potential redundancy.

Can an employer medically suspend an employee because of Coronavirus?

The statutory definition of medical suspension is very limited and does not currently extend to Coronavirus. If an employee falls within the definition of being in isolation for Coronavirus for the purposes of SSP, it is likely that they would be considered to be sick and therefore eligible for sick pay (either company sick pay or SSP only). If they do not fall within that definition, they should receive full pay unless their contract of employment states otherwise.

Can an employer pay someone in lieu of their notice whilst on furlough?

Yes – where employers have reserved the right to pay in lieu of notice in a contract of employment they may rely on this right. For more guidance on dismissals please see https://lexleyton.co.uk/redundancies-and-dismissals/

Can an employer refuse an employee permission to travel somewhere because they might get infected/ they might need to quarantine when they come back?

No. What your employees do outside of working hours is largely out of your control. You can encourage employees to consider whether, from their own health perspective, travel to those areas is the best thing to do and that, if they do decide to travel, they should take all necessary health precautions.
Employers should also discuss the likelihood of post-visit isolation and the impact of that on the individual and the wider working team.

Can an employer refuse an employee’s request to work from home?

In the current circumstances, it is prudent to allow those employees who wish to work from home to do so.
Clearly, this only applies to employees whose role can actually be carried out remotely.
While an employer may refuse a request to work from home, special consideration should be given to whether:

The employee is genuinely in the most vulnerable group, in which case
such a refusal may amount to a breach of trust and confidence; or
The employee is disabled and working from home may amount to a Reasonable Adjustment.

What should we do if an employee has not been advised to come to work but decides not to because they are too anxious/stressed to do so?

If an employee refuses to go to work when they are fit to do so, an employer has no legal duty to pay them. However, stress or anxiety are clearly conditions which impact on an employee’s fitness to come to work. Accordingly, if an employee is not fit to come to work because of stress or anxiety due to the threat of Coronavirus, they will be considered to be on sick leave and receive sick pay. They may wish to work from home instead if they feel able to do so.

Where an employee is able to work from home, they are not automatically entitled to SSP if they work from home.

Can an employer still pay staff their accrued bonus whilst they are furloughed?

Yes - although employers who can pay bonuses should consider whether they actually require to use furlough pay to support their business. There is no sign that HMRC will means-test the grant, but employers should think carefully on this. Payment from HMRC will not include any element attributable to bonuses.

Can an employer undertake a redundancy consultation with furloughed employees?

Yes.

Can an employer undertake a redundancy consultation with furloughed employees?

Yes.

Can employers furlough apprentices?

Yes - apprentices can be furloughed like any other PAYE worker. They can continue to undertake training in the meantime as long as i) they do not perform services for/to or generate revenue for their employer and ii) they receive at least the relevant minimum wage for time spent training.
The Government have prepared a comprehensive list of FAQs on apprentices at:
https://www.gov.uk/government/publications/coronavirus-covid-19-apprenticeship-programme-response/coronavirus-covid-19-guidance-for-apprentices-employers-training-providers-end-point-assessment-organisations-and-external-quality-assurance-pro#apprenticeship-training-frequently-asked-questions

Can employers furlough employees who are struggling to work because of care responsibilities?

Yes - they can. Employers are not obliged to do so, and any decision to furlough employees should be right for the business (and backed up by a recorded business case), but in the circumstances of an employee struggling due to care responsibilities it may be prudent to furlough them.

Can employers furlough employees whose visas do not permit them access to public funds?

Yes - the furlough grant from HMRC is not considered to be 'access to public funds'. Employees on all categories of visa can be furloughed.

Can employers pay some employees the 80% and some employees 100% (adding the 20% from their own funds?

This is possible, although given the latent discrimination risks we would recommend not to do so. If an employer did wish to do this, they should put in place a transparent policy and apply this in a non-discriminatory manner.

Where an employee works part-time and is furloughed part-time from 1^st July 2020, the Government contribution will only be in respect of the time spent furloughed.

Can probation be paused during furlough?

It can (and probably should). Note that this will not happen automatically, but it is advisable to add this to any furlough agreement.

Can someone be paid SSP and be furloughed?

An employee who is furloughed should not receive sick pay. Employers can claim back from both the Coronavirus Job Retention Scheme and the SSP rebate scheme for the same employee but not for the same period of time. When an employee is on furlough, their employer can only reclaim expenditure through the Coronavirus Job Retention Scheme, and not the SSP rebate scheme. For more guidance on SSP see:

Sick Pay

Can the consultation period for redundancy be limited due to the current pandemic and its catastrophic economic consequences?

Redundancy consultation should last as long as is necessary to cover the required elements of the consultation process. For proposed redundancies of 20 or more employees at a single establishment, there are particular requirements which must be covered in a consultation. If this is likely to apply to your business, contact your LexLeyton Employment Solicitor as soon as possible.

Can we ask employees to work while they are also being subsidised by Government wage relief?

Yes - post-1st July 2020 the Scheme allows furloughed employees to work part-time.

Can we dismiss employees that are still on probation (‘last in, first out’)?

As employees in their probationary period will have under two years they are less of a concern in terms of termination. Employers should be mindful of the usual discrimination, whistleblowing or health and safety risks. However, given the current situation this is a low risk, as such employees are an obvious choice in reducing head count.

Employers should just tell them the truth: that they must terminate their contracts because they have nothing for them to do at this point.

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