John Szepietowski discusses Covid-19 – The Job Retention Scheme and the National Lockdown

The Coronavirus Job Retention Scheme (Furlough) has been extended in the national lockdown until the 30 April 2021. Employers can claim 80% of an employee’s usual salary for hours not worked, up to a maximum of £2,500 per month.

When is Furlough appropriate?

The furlough scheme is available to employers who ‘cannot maintain their workforce’ or who’s operations have been ‘severely affected’, because of Covid-19.

Employers can claim for any type of employment contract, including full time, part time, agency, flexible or zero-hour contracts. The employer does not have to be claimed for furlough before, and there is no limit for how many employees can be claimed for. The flexible furlough scheme also allows for employees to work part time and for furlough to be claimed in respect of the time they are not working.

Who can be furloughed?

Those that qualify for the scheme are employees that were employed on 30 October 2020 and employees on payroll on 23 September 2020, who were then redundant or whose fixed term contract ended.

Furthermore, employees can qualify for the furlough scheme if their health is affected by covid-19, for example, those people that are shielding in line with public health guidance, employees who have caring responsibilities resulting from covid-19 and pregnant women over 28 weeks or with specific underlying health conditions.

What if Furlough is not an option?

If furlough is not an option, there are alternative remedies available, these shall be explored below:

  1. Working from Home: Employers are advised that if their employees can be working from home, they should take ‘every possible step’ to facilitate this. This option applies especially to offices that effectively implemented work from home in the first national lockdown, or employees who have predominantly screen based roles.
  2. Making a Covid-19 secure workplace: if work cannot be done from home, the government has released substantial advice on how to make a workplace Covid-19 secure. This advice is not only essential for the safety of employees, but also useful to mitigate risks of legal claims from employees for unfair dismissal, or negligence. Employers should complete a risk assessment for the office, including considering the different risks for different types of employees.
  3. Sick pay: statutory sick pay has been extended in light of the current pandemic to include certain absences relating to coronavirus.
  4. Annual Leave: if an employee wishes to be furloughed but this is not an option, an employer may consider asking them to take annual leave. Employers will still have to pay employees as usual, so this may not be an appropriate remedy if an employer is trying to save on costs.
  5. Unpaid Leave: unpaid leave can be agreed with the employee’s consent, and may be the most amenable solution to difficult scenarios for both parties. Employers may also consider asking staff to take reduced salaries for a period of time. Whilst these options are difficult for both parties, an open and conversation is recommended between employers and employees to find the best solution.
  6. Disciplinary: if an employee refuses to work and cannot be furloughed, the employer may be able to take disciplinary action against the employee. However, employers should carefully consider all circumstances and alternative options before taking disciplinary action. Disciplinary action may open employers up to legal risks of discrimination or unfair dismissal claims.

At Audley Chaucer, we appreciate that this is a very difficult time for businesses. If you desire further information on the Furlough scheme and how from a legal standpoint Audley Chaucer may be able to assist you, please contact John Szepietowski at Audley Chaucer Solicitors on 01372 303444 or email us at or visit our Linkedin page.

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