What happens during furlough leave?
14 April 2020 by Tony Fisher
Following on from our blogs, what you need to know about the Coronavirus Job Retention Scheme and how is furlough leave implemented, we look further into furlough leave and what happens during it such as will employees continue to accrue annual leave, can an employee work for another employer or volunteer, can employees with more than one employer be furloughed and can employees on furlough leave undertake training.
Will employees continue to accrue holiday during furlough leave?
It is likely that the 5.6 weeks’ leave under the Working Time Regulations 1998 continues to accrue during furlough leave.
Where a worker does not take annual leave in the relevant leave year because they were on furlough leave, can they carry it forward to the next leave year?
The government has passed emergency legislation relaxing the restriction on carrying over the four weeks’ leave derived from the Working Time Directive (2003/88/EC) (WTD leave) with effect from 26th March 2020.
Can an employee work for another employer?
There is nothing in the current guidance that suggests the employer will only be able to access the reimbursement if it makes it a condition of furlough leave that the employee does not work elsewhere. It is, however, clear that the employee cannot do work for the employer seeking the reimbursement during furlough. Also, the employee’s contract of employment will continue during furlough leave so any enforceable restrictions on working elsewhere during employment will continue to apply. However, in the circumstances, employers may consider relaxing any such restrictions to allow employees to take up a role with a non-competing business with their prior consent.
Can employees with more than one employer be furloughed?
Yes, the states that an employee can be furloughed by one employer and continue to work for the other, or can be furloughed by both employers. The scheme will reimburse each employer for 80% of the employee’s salary, up to the £2,500 cap for each job.
Can employees on furlough leave do volunteer work?
Yes, the guidance has clarified this point. This assumes that the volunteering in question is not for the employee’s employer and being used to circumvent furlough leave but receive reimbursement of wages. That would likely be regarded as fraud and the government has explicitly identified the right to retrospectively audit all aspects of the scheme with scope to claw back fraudulent or erroneous claims.
Can employees on furlough leave undertake training?
Yes, the guidance has clarified this point. This assumes that the training is not used by the employer to generate revenue as a way of circumventing furlough leave. If the employer requires the employee to complete training during furlough then this will not bring their furlough leave to an end, but they must be paid the national minimum wage in respect of the training. If the employer intends to require the employee to undertake online training during furlough leave, then this should be agreed with the employee and reflected in the correspondence confirming furlough leave.
For help with any of the above FAQ’s, contact the Fisher Jones Greenwood quick response team on 01206 700113 for initial telephone advice free of charge or email [email protected]. For more on Employment Law during the Coronavirus pandemic, visit our Coronavirus Legal Advice hub.