Coronavirus commonly asked questions

Coronavirus commonly asked questions and answers

Does my employer have to put me on furlough?

There is nothing in the Coronavirus Job Retention Scheme (“the Furlough Scheme”) which requires employers to furlough eligible staff.  The Furlough Scheme is a facility for the benefit of employers, if they wish to use it.  Although the Furlough Scheme can be used for workers in many situation including for those on zero hours contracts, who are shielding or who must stay at home to care for children who are unable to go to school, an employer is not obliged to do so.  Your employer can choose instead to pay only sick pay if you are shielding, or nothing in other circumstances.

Having said that, there are few good reasons why your employer would not want to access the Furlough Scheme on your behalf.  In most circumstances, a request to be furloughed with reference made to the government guidance to show your eligibility should be enough to persuade your employer.

Can my employer make me use up my holiday allowance when my workplace is closed?

In many cases an employer has the right to dictate when a worker takes his holiday, so long as he gives sufficient notice.  It will very much depend on the specific wording of the contract of employment. 

This means that an employer can require staff to take holiday instead of furloughing them.   The government guidance on the Furlough Scheme also says that employees can be required to take holiday while furloughed.  Either way, this could mean that workers are made to use up their holiday allowance at a time when holidays are not really possible.  Because of this risk, the government has said that workers should not be required to take holidays if the restrictions currently in place would prevent the worker from ‘resting, relaxing and enjoying leisure time, which is the fundamental purpose of holiday,’  So, it seems that you can be made to take holiday, but only if you have an opportunity to enjoy it.

My employer wants me to return to the workplace, but I don’t think it’s safe.

In general, you are required to attend your usual place of work when your employer requires you to and so long as your employer’s instruction is legal.  An employer cannot require you to do anything which would be illegal, such as opening a business which should be closed under the lockdown laws.

However, if you have a reasonable believe that attending work or remaining in work would put you in serious and imminent danger which cannot be averted, you are entitled to take steps to protect yourself.  This may include removing yourself from the workplace, or part of it.

Many employees will have legitimate anxieties about returning to the workplace.  However it will be difficult to show that that a return to work poses a serious and imminent danger unless your employer has failed in a significant way to adhere to the appropriate government guidance applicable to a workplace of that type.

My employer has just stopped paying me

If you are employed on a salary or for specified working hours then, so long as you are able and willing to work, you are entitled to your normal pay.  This is the case even if your workplace is closed or no work is available.  This can be modified if you agree to be furloughed at a lower rate of pay or agree to a pay cut.  However, such changes can only be made by agreement, your employer cannot just impose them on you.

If your employer does not pay you, or pays you less than you are entitled to, you can make a claim for unauthorised deductions from wages.  Such a claim can be made in the employment tribunal.  You will need to start proceedings by contacting ACAS about your intention to bring a claim (https://www.acas.org.uk/early-conciliation).  You must do this within three months of the failure to pay you.

My employer has gone bust, what are my rights?

If your employment is terminated and your employer has gone into administration or liquidation you can claim amounts owing to you, such as wages, holiday pay, notice pay and redundancy pay from the administrator or liquidator.  This is a time consuming and often unproductive process.  Fortunately, much of what you are owed is guaranteed by the government Insolvency Service.  The administrator or liquidator should provide you provide you with details of how to make an application to the Insolvency Service on RP1 and RP2 forms.  Information is also available online.  (https://www.gov.uk/government/publications/redundancy-payments-rp1-fact-sheet)

My employer is considering making people redundant, what are my rights?

An employer is required to follow a fair process when making redundancies.  Generally speaking, this requires the employer to:

• Give fair warning of the need to make redundancies and start a process of consultation;
• Adopt a transparent and fair basis for selecting which employees will be made redundant; and,
• Consider alternatives to dismissal such as alternative positions.

Additionally, where an employer is proposing to dismiss 20 or more employees from a particular place of work, it must also undertake collective consultation with trade unions or employee representatives.

Can my employer reduce my working hours or pay?

When you are employed there is a legally binding agreement between you and your employer which is a contract, whether or not it has been put into writing.  That contract will include agreements about your hours of work and your rate of pay.  You are entitled to insist on these terms of your contract unless:

• The contract allows for your employer to change your hours or pay – such as with a zero hours contract’; or,
• You have given your consent to the change.

Although you can insist that your employer keep to the terms of the contract, if your employer can show that those terms are no longer workable, it can go through a process of dismissing you from your old contract and offering you new employment on a new contract.

My employer has refused to furlough women with children because it thinks they will not be able to work from home with their children around

Being furloughed and continuing to be paid (even if at 80% of the normal rate) is a benefit for some.  Continuing to work and to receive full pay is also a benefit to some.  An employer must decide who it furloughs and who it requires to continue working only on the basis of legitimate business considerations.  If an employer takes into account stereotypical assumptions about peoples’ abilities to work effectively from home they may be committing unlawful discrimination on one of the grounds prohibited in the Equality Act 2010.   

I agreed to be furloughed and my employer said it would pay 80% of my wages.  Now it is refusing to pay me at all.

This is not uncommon.  The Furlough Scheme is being administered by HMRC.  Some employers are worried that if they make a claim their tax affairs will be put under the spotlight.  In other cases there may simply be some administrative delay.

Either way, if your employer has furloughed you and agreed to pay your wages, it is under a legal obligation to do so.  That obligation will not normally be dependent on whether it can recover money from the government.

I am working as normal, but I know that my employer has claimed my wages from HMRC by dishonestly stating that I have been furloughed.

There have been many complaints along these lines.  In some cases, employees have been furloughed only to be asked to come back to work as ‘volunteers’.  This is an abuse of the Furlough Scheme and may well be fraudulent.  HMRC have set up a dedicated webpage for reporting these matters.  (https://www.gov.uk/government/organisations/hm-revenue-customs/contact/report-fraud-to-hmrc)