Furloughed Employees - What are your employment rights and pay

Caragh Bailey
17/09/2020
advice for furloughed employees from employment law friend

Recent Updates:
The Coronavirus Job Retention Scheme, known as the Government Furlough Scheme, was due to conclude on the 1st November 2020. Employment Law Friend can confirm that the Coronavirus Job Retention Scheme will be extended until the 30th of September 2021.

The coronavirus job retention bonus has been withdrawn by HMRC. This means that employers will not be able to claim a financial award for each employee whose job they have retained by furlough. This would have been due at the end of January 2021.

Your employer cannot claim furlough pay for any days from the 1st of December 2020 onwards, during which you are serving your notice period (this includes your statutory notice period, as well as any contractual notice period). This affects notice of resignation, notice of dismissal, notice of retirement and notice of redundancy. Your employer will be responsible for paying your full statutory and contractual notice pay during your notice period.

Some businesses which are not eligible for the coronavirus job retention scheme, will be eligible for the Job Retention Scheme when it comes into affect. Including small and large employers & charitable and not for profit organisations.

So you’ve been Furloughed. What does it mean?
Furlough just means a temporary leave of absence. Most likely, your employer has furloughed you because you cannot work due to the coronavirus pandemic. In that case you are probably receiving government furlough pay under the coronavirus job retention scheme..

For periods ending before 30th April 2021, your employer can claim furlough for you, if:
  • You were employed on 30th October 2020
  • Your employer made a PAYE RTI submission to HMRC between the 20 March 2020 and 30 October 2020 notifying a payment of your earnings.

For periods starting on or after 1st May 2021, your employer can claim furlough for you, if:
  • You were employed on 2nd March 2021
  • Your employer made a PAYE RTI submission to HMRC between the 20 March 2020 and 2nd March 2021 notifying a payment of your earnings.

For periods up to 30th June, the government will pay the whole 80% (Subject to cap) of your usual wages. In July and August their contribution will decrease, but your employer must make up the difference, until the scheme ends on the 30th September 2021.


What are the government criteria for furloughed employees?

  • You cannot claim for it yourself, your employer has to do it for you.
  • Your employer must have UK payroll and a UK bank account
  • You must agree to being furloughed by your employer (voluntary furlough) You can claim if you are on any type of contract, including zero hour contracts and temporary contracts.
  • You must have written confirmation from your employer that you have been furloughed. (If you have been furloughed due to collective agreement with your trade union, they must provide this in writing too)
    • This agreement must be consistent with employment, equality and discrimination laws.
    • Your employer must keep a written record of the agreement for 5 years.
  • You cannot claim if you’re self-employed. You may qualify for support under the self employment income support scheme

Limitations while on furlough from work: You must not undertake any work for the hours that you are on furlough. This means no work during any time that you are furloughed, and no work for the hours for which you are flexible-furloughed.

Furlough exempt employees

Anyone who can fulfil their work obligations, at work or if necessary at home, is exempt from the furlough scheme. The scheme is only for people who cannot work due to the coronavirus.

Pay for furloughed employees

The government pay furloughed workers 80% of their usual wages in total (up to £2500 per month)

You will receive your government furlough pay from your employer and will continue paying pay as you earn (PAYE) tax and National Insurance (NI) contributions on this income.


I have been furloughed without pay.

If your employer has furloughed you using the coronavirus job retention scheme (govt furlough) they will be receiving the government contribution for your furlough pay.

If they are not paying you, they may be in breach of contract.

They may also be committing fraud.

If you are on temporary furlough from work, but your employer has not made a claim through the coronavirus job retention scheme, they are responsible for paying all of your furlough pay.

If they are not paying you, they may be in breach of contract.

If your employer has told you that you are on furlough and that they do not intend to pay you, they may be in breach of contract.
If you are on a zero hour contract they could have furloughed you under the coronavirus job retention scheme (government furlough) If your employer did not submit a claim for you before the 31st of July, (for three consecutive weeks between the 1st of March and the 30th of June) they will not be able to file a claim for you now.

If they cannot give you work, and cannot pay you:

Am I eligible for furlough?

If you meet the general criteria and are either:
  • on sick leave
  • self isolating because of coronavirus

    Then:
  • You should get statutory sick pay as minimum
  • Your employer can continue to fully furlough you
  • You will no longer receive sick pay. But should be treated as any other furloughed employee.
The guidance for those people categorised as extremely clinically vulnerable is changing from 1 April 2021 and they will no longer be advised to shield (and will no longer be eligible for SSP on the basis of being advised to shield). From 1 April 2021, extremely clinically vulnerable people are advised to work from home where possible and, if they cannot work from home, the guidance states that they should go to work.
If you meet the general criteria and are either:
  • caring for children who are at home because their school/childcare is disrupted due to coronavirus (and you are unable to work, including from home)
  • Caring for a vulnerable member of your household (and you are unable to work, including from home)

Then:
  • Your employer can continue to fully furlough you from the 1st of July.
You are eligible for the scheme as long as you meet the general criteria

If you are on a fixed term contract, your employer may extend it.

If your fixed term contract has expired, your employer may re-employ you to put you on furlough.
As long as you meet the general criteria you may be furloughed by one employer and continue to work for another employer.

If you are furloughed by more than one employer you will receive separate payments from each.
  • The monthly cap of £2500 applies to each job

If you have had multiple employers, but only worked for one of them at a time:
  • you can be furloughed by your current employer, but;

  • you cannot be furloughed under the scheme by your previous employer(s) at the same time.
You are eligible for the scheme if all of the following applies:
  • You are returning to work from a period of mobilisation that started before the 10th of June 2020
  • You returned after the 10th of June 2020
  • Your employer claimed for you, or another employee, for a furlough period of at least three consecutive weeks between the 1st of March and the 30th of June 2020
  • Your employer included you on a Real Time Information submission on or before the 19th of March 2020
You are eligible for the scheme if the general criteria and all of the following applies:
  • Your employer pays you through PAYE
  • You were on your employer’s payroll on or before the 19th of March 2020 (They made a Real Time Information submission in respect of you)
As long as you meet the general criteria you can be furloughed like any other furlough employees and continue with your training.

You must be paid at least the appropriate statutory minimum wage for all of the time you spend training, even if it is higher than 80% of your usual wage.
You are eligible for the scheme as long as you meet the general criteria.

Your claim can continue during school holidays.
If your organisation receives public funding for staff costs we expect your employer to pay you from this funding as usual and not use the government furlough scheme.

If your employer is not fully funded by public grants, they may consider accessing the coronavirus job retention scheme. They should contact their sponsor department or respective administration.
You may be eligible for the scheme if you meet the general criteria.
  • You must be paid through PAYE (including work for umbrella companies)
  • Furlough must be agreed between you and the agency
  • You must not carry out any work for the agency or for it’s clients on behalf of the agency while on furlough.
You may be eligible for the scheme if you meet the general criteria and you are:
  • a contractor with public sector engagements in scope of IR35 off-payroll working rules (IR35)
  • a company director
  • a salaried member of a Limited Liability Partnership
  • a Limb (b) worker
  • an office holder

Flexible Furlough: Am I eligible?

If you meet the general criteria your employer can now bring you back to work for any amount of time and shift pattern (as agreed by you, or by collective agreement with your trade union)

  • This new agreement must be consistent with employment, equality and discrimination laws.
  • Your employer must keep a written record of the new agreement for 5 years.
  • They must also keep a written record of the hours you work and the hours you are furloughed (the hours that you are not working, out of your normal weekly hours pre-covid)

Frequently Asked Questions

You do not need to report a fall in your working hours if you have been put on furlough. You will be treated as working your normal hours until the coronavirus job retention scheme closes.

You should still report changes in income (such as only receiving 80% of your usual income on furlough), childcare and any increase in hours in the normal way.
If your universal credit payments are based on your usual earnings. They may increase to account for the 20% loss of earnings under furlough.

If your universal credit payments are based on less income than you will receive under furlough, then your furlough pay will reduce your universal credit payments

If you are on:
  • Maternity leave
  • Paternity leave
  • Adoption leave
  • Shared parental leave
  • Parental bereavement leave
The normal rules for parental leave apply.

Your leave pay should reflect your usual pay, not your furlough pay

Maternity Allowance: How does furlough affect me?
You cannot get furlough pay at the same time as maternity allowance.

I have agreed to end my maternity leave early and go on furlough instead
You must give your employer 8 weeks notice.

You will be eligible for furlough pay at the end of your notice period.

I have agreed to be put on furlough
You must notify jobcentre plus, who will stop your maternity allowance payments.

I am pregnant and about to start maternity leave
You should start maternity leave as normal.

My earnings were reduced because I was off sick before maternity leave
This may affect your statutory maternity pay.

See how your government furlough pay will be calculated >>


Has your employer handled your furlough properly?
This is a difficult and confusing time, if your employer is mishandling your furlough or underpaying you, get in contact with us and see how we can help.

Employment Law Specialist | Competitive Quotes | Straight Talking Legal Support


This content is provided free of charge for information purposes only. It does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of our company. For employment law advice please get in contact and speak to your employment law solicitors.
 
Find Out More:

Talk to a Professional

Are you a Furloughed Employee? Whatever issue you may be facing, we can help.


Just get in touch today to speak to one of our professional Employment Law Friends

 
 
Agree to Terms | Privacy Policy
We reply to all messages within 1 working day and will help wherever we can!
Employment Law Friend Privacy Promise
Employment Law Friend Privacy Promise

We promise not to share any of the information you provide to your employer.
What you tell us, stays between us.
We're loyal like that.

No Win No Fee Employment Solicitors from Employment Law Friend

Click for more information. Terms apply.