Latest updates: furlough, redundancy, short-time working, staff representatives & RIDDOR
URGENT! Don’t believe all you read! There has been much in the press in recent days about the fact that if you want to continue to take advantage of this scheme into July and beyond then the latest you can furlough your employee/s is 10th June.
We have also been told repeatedly in various media that no one will be eligible for furlough from 1st July unless they have been already on furlough in the preceding 3 weeks.
THIS IS WRONG! You can re-furlough up until October any employee who has at any point been on furlough, irrespective if at some point you brought them back in before re-furloughing.
However if you haven’t already furloughed your employees then the deadline for you to do so to ensure you can use the scheme is the 10th June, which is just one week away, so if you have been dragging your heels about making decisions about future resourcing requirements then now is the time to make the necessary decisions.
Here is a copy of our web chat with HMRC today to get proper clarification:
Jaluch: Hello: If an employee was placed on Furlough for 3 weeks during May but has since returned to work can I still use the furlough scheme in July? Or do they need to be on Furlough continuously from 10th June?
HMRC: Hi! You can still use the scheme in July. The claim should reflect any changes in status and only claim for dates when the employee was furloughed – i.e. reduce the amount claimed for any employee that was working by the amount they were paid. Note employees cannot be furloughed for any periods under three weeks.
Jaluch: OK great thanks so just to check as long as they have been on Furlough for 3 weeks at any time before 30th June then I can furlough them again at any time during July/August/Sept/Oct providing the claim reflects the right hours/dates etc?
HMRC: Yes that’s right. Anything else I can help with?
Redundancy selection criteria
As many businesses are thinking about redundancies, a question that keeps arising is: can I use ‘on furlough’ as a fair selection criteria for redundancy.
As long as you take a logical, considered, non-discriminatory approach (and consult as required by law) you can choose any selection criteria you like, including ‘on furlough’ (assuming, of course, that those who have already been furloughed were selected for that in a logical and non-discriminatory way).
In terms of logic, we have seen a legal firm advising selecting out those whose surnames began A-J, but leaving in place all others. Logical and certainly not discriminatory but we can confirm the staff didn’t see it as a ‘nice’ way to go about things – if there is such a thing as a ‘nice’ approach to choosing selection criteria.
🚩 But whilst ‘on furlough’ seems logical and non-discriminatory, there are a few red flags if this is your selection criteria of choice:
If the reason your employee is on furlough is due to them requesting it as a result of their own health issues for example because they are shielding, then making them redundant for this reason alone might result in a disability discrimination claim. (provided of course they have a disability – which is not guaranteed just because they have health issues that require them to shield).
Also, if the reason your employee is on furlough is because they asked if they could be placed on furlough to protect a vulnerable family member or due to caring responsibilities, then you might just find yourself on the end of an ‘indirect or associative discrimination’ claim if you dismiss them simply for being ‘on furlough’.
If you don’t remember much about associative discrimination check out the Equality Act of 2010 – this is about discrimination due to them being associated with someone who has one of the 9 protected characteristics.
If you have 20 or more people likely to be affected by redundancy you are legally obligated to elect and train up staff representatives. We know that money is tight for many and have increasingly been asked for options by organisations who have just a couple of representatives to train, meaning an in-house course is prohibitively expensive. Therefore, we are running online staff representatives open courses, once a week for the next two months. This creates an option to book just one to two reps for training. We hope that, as ever, we can service your needs better by adapting and adjusting our offering in this way.
🔎 For more information or to book, visit our staff representative open course page.
Short time working
Ahead of the government providing an option for part-time furlough and part-time work from July, an increasing number of businesses are already wanting to bring staff back in, but looking to do so on a reduced hours basis. Having too many staff off is proving to be damaging to many businesses. For more information, read our short-time working and lay-offs HR Blast.
🚩 But if you are going down the short time working route a few red flags:
Have you reserved the right to take this action in your contracts of employment? If you go ahead anyway you are more exposed than those businesses that had good robust employment contracts so double down on the consultation you do and the paperwork you put in place.
Even if you have reserved the right to do this in your contract, you still need to consult and you still need paperwork to show what has been agreed, by how much, for how long and with whom! Don’t cut the paperwork otherwise you won’t have a leg to stand on if someone sues you for constructive dismissal or something similar.
Is a verbal agreement as good as a signed bit of paper? No!
Yes, you can make legal agreements verbally but if there is any disagreement at all after the event then this will not protect your business. So even if you think you have someone’s agreement, get confirmation in writing.
Just in case you missed it in our previous important reminders for HR and business owners HR Blast, or didn’t join us for one of our H&S webinars last week, COVID is officially a reportable disease under RIDDOR. Don’t get caught out by not notifying the HSE if you have any employees, suppliers etc. who present with symptoms.