Furlough - A Question & Answer session with Sarah England from Gales Solicitors

19th May 2020

Can I take annual leave whilst on Furlough?

In the beginning…..it was thought that Employees were not permitted to take annual leave whilst on Furlough. For that reason, many Employees that were put on Furlough leave in March and at the beginning of April will probably have Furlough Agreements that state they are not permitted to take Annual leave during the Furlough period.

New guidance was published on the 20th April which specifically stated that Employees can request to take annual leave whilst on Furlough. Employers are also now able to compel Employees to take annual leave whilst on Furlough.

If I take annual leave, how much will I be paid?

Your Employer must pay you 100% of the salary you usually received when you took holiday prior to being placed on Furlough leave. Your Employer is able to recover 80% of those wages through the Government Furlough Scheme (CJRS)

Can I work for someone else whilst I am furloughed by my main Employer?

In theory, yes you can. You must make sure that the work doesn’t breach your contract of employment. Before accepting any other work, contact your main Employer and ask for their written permission to do so.

Can I be made redundant whilst on Furlough leave?

There is nothing at present in law that prevents an Employer from commencing a redundancy process. The Furlough Scheme is a new development to UK employment law, and as such there is no definitive case law to assist us in knowing whether a dismissal in these circumstances is fair or unfair. A dismissal may be unfair if there was no detriment to an Employer by keeping an Employee on Furlough. If however, there are financial considerations then a dismissal is likely to be fair. In any event, your Employer must follow a fair process when considering redundancy even if you are on furlough leave. Redundancy should be a last resort.

I don’t feel safe returning to work even though my Employer says it is safe to do so. Can I refuse to return to work? And what if my Employer dismisses me or stops paying me?

Your Employer has a legal duty to provide you with a safe place to work. If you hold a reasonable belief that returning to work places you in circumstances of danger, then you can refuse to return to work. If you are dismissed as a result of this refusal, then you have a potential claim of automatic unfair dismissal. You would not need to have two or more years’ qualifying service to bring a claim.

If your Employer stops paying you then this could amount to a detriment and you would be able to bring a claim for the recovery of your wages and an award for injury to feelings.

How much notice pay am I entitled to receive if I have been dismissed whilst on furlough leave?

The amount you receive will most likely depend on your contract of employment. If you are entitled to more notice than your statutory entitlement (by at least one week) then you are most likely to be paid at the same rate to that which you have been receiving whilst on furlough leave (80% of your notice pay if that is what you are being paid whilst on furlough). If however you are entitled to the statutory notice period then you are most likely entitled to be paid your normal salary (100%).

Sarah England, Partner at Gales Solicitors has been providing expert legal advice on employment issues for over 10 years. Sarah has a keen interest in discrimination, unfair dismissal and national minimum wage claims.

Sarah@gales-solicitors.co.uk Tel. 01202 422622