Employment Q&A Summary

Following our recent employment Q&A webinar we have put together a summary of some of the most frequently asked questions relating to furlough and other issues.

With guidance changing so frequently, we are doing our best to keep you up to date. This information is our understanding at this point of time, however as more and different advice becomes available this position may change and we will update accordingly. This is an evolving and unfolding situation, and we take the view that different measures may need to be applied for different sets of circumstances at an appropriate time. We as a team are available to discuss with you what measures are available to you.

Update since the last Q&A webinar:
  • The job retention scheme has been extended until the end of October.

Q) Given the different lockdown restrictions in Scotland and England, is Scotland (and by extension, Scottish organisations) in a state of limbo?

A) There is limbo in the sense that there is no defined timeline on when the lockdown will be lifted. As a result, employees don’t know where they stand in relation to the status of their employment which can be daunting.

Q) Is there an ability to consult with furloughed staff in relation to redundancy proposals and also potentially contribute to selection processes where pools are being reduced (and is this okay whilst they are still on furlough). Our advice so far has been that this is fine during furlough as it doesn’t constitute work and also we know from the guidance that someone can be served notice whilst on furlough and be furloughed during the notice period.

A) Redundancy pools of over 20 employees will trigger the minimum consultation period of 30 days. In such cases, representatives need to be elected and employers need to consider that postal ballots cannot be used as well as other IT difficulties.

However, it’s important to emphasise that employers should consider all of their options before starting any redundancy process.

Q) How do I choose who to ‘unfurlough’ when I have several people in the same role?

A) This is quite common. Using the example of three people with the same role, a business should consider the individual circumstances of each individual (particularly if the individual(s) have family commitments).

As well as considering individual circumstances and that naturally leading to a decision, employers can consider rotating the furlough between the team members. This would help to ensure fairness, increase flexibility, and avoid any perceived discrimination.

Q) Can an employer use the furlough to cover redundancy notice periods?

A) Yes, but it would need to be at full salary [Furlough reimburses salaries up to 80%, up to a maximum of £2,500 per month].

Employers can also consider paying an employee in lieu of notice if the individual contract of employment permits them to do so.

Q) Can the furlough period cover notice and annual leave, or would an employer need to serve notice and then pay annual leave?

A) As above, employers can incorporate annual leave and notice into furlough but they would need to top up the employee’s salary to 100% during such periods.

Q) Can employers go back to individuals with written furlough agreements in place in order to change the agreement and ask them to take annual leave?

A) Yes, you are able to amend that and perhaps also take an extension into consideration.

 It’s important to make sure that such agreements are confirmed in writing.

Q) If staff don’t want to take annual leave during furlough, how should this be managed?

A) This is naturally a difficult situation but not an uncommon one as it is unlikely anyone will want to take leave during this period. However, this needs to be balanced against the needs of the business.

Employers can insist on employees taking annual leave as long as twice the amount of notice is given. For example:

If an employer wants an employee to take one week of leave, they need to provide a minimum of two weeks’ notice ahead of the leave period starting.

Q) What options do employers have if an employee doesn’t want to come back to work but they are classed as a key worker?

A) Employers need to exercise their duty of care as much as possible and re-assure their returning employees that mechanisms are in place to ensure their health and safety such as:

  • Social distancing
  • Hand sanitisers
  • Strict Health and safety protocols for equipment and using canteens (if applicable)

Q) Could an employee successfully argue that their employer’s duty of care should extend outside of the workplace (for example – paying for private travel as opposed to the employee using public transport)?

A) No – as long as the employer is taking reasonable steps to ensure the safety of employees in work they are on solid ground. However, they may wish to consider being flexible in working hours to prevent a high number of staff being in work at the one time, and also avoiding the rush hour commute.

Q) What should an employer do if an employee has been instructed to self-isolate for 12 weeks?

A) The employer should continue to furlough them especially if they are in a protected category.

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