With the furlough scheme (Coronavirus Job Retention Scheme) extended until the 30 April 2021, there has been further focus on how employers have chosen which of their employees to furlough. There are growing concerns amongst employers about the repercussions of furloughing employees. Employers could face potential employment tribunal claims relating to the coronavirus pandemic around their decision making process when furloughing employees. It’s therefore important to ensure when furloughing employees, that this is done correctly in order to avoid any potential claims for discrimination. We’ll highlight the key considerations for employers when furloughing employees:
There are employees who are unhappy at being placed on furlough, particularly where this is accompanied by a pay cut. Equally, there is a significant group of employees who would prefer to be furloughed, but their employer has turned down their request. This group includes parents and carers who are struggling to balance working from home with caring and home-schooling responsibilities and employees who are on sick leave but would receive more pay if they were placed on furlough. From an employers point of view, it is difficult to juggle these scenarios as well as managing a business through a pandemic.
To ensure you are compliant as an employer, normal employment law principles should be applied to any furlough selection process, to avoid discrimination claims. For example, if a disproportionate amount of men, women, disabled or older staff have been selected, and arguments that their furlough decision-making has breached the implied term of mutual trust and confidence.
Advice For Employers
It is advisable for employers to select employees for furlough using a process like redundancy selection (using objective criteria, such as a scores matrix based on skills, productivity, previous appraisals, etc).
Discuss all of the available options with employees and stay up to date with the latest advice on the Government website.
Also ensure you record your furloughing decisions and track their impact.
- Who has been placed on furlough?
- Who has been made redundant?
- Who has been asked to return to the workplace?
- Who has gone on unpaid leave?
- How many reasonable adjustment requests have been approved?
- Who has been offered flexible working patterns?
This will help ensure you’re not discriminating against any specific group and will help prove that your decisions are objectively justified.
Who can be furloughed?
Employers are able to put an employee on furlough providing they were employed on or before 30 October 2020.
The following are eligible for furlough, whether they are full time or part time:
- Agency workers
- Those on zero-hours contracts
Employers are also able to put individuals on furlough who are temporarily unable to work due to:
- They’ve been advised to shield (stay at home) by their doctor due to underlying health conditions
- They have childcare responsibilities
- They’re caring for a vulnerable person in their household
What furloughed staff can / can’t do:
When an employee is on furlough, they are able to:
- Volunteer work, providing it’s for another employer or organisation
- Training to keep their skills and learning up to date
Furloughed employees are not able to:
- Perform tasks or activities that make money for their existing employer or an organisation linked to their employer
- Provide a service for their employer or an organisation linked to their employer
However, if the employee is on flexible furlough, they are able to work for their employer during the hours they are not on furlough for.
If you are considering whether you are following the correct process when managing your furlough process, why not speak to one of our experienced HR Managers and let us help. Speak to us today! [email protected]