WHEN it comes to questions about employment during the coronavirus crisis, we are in uncharted legal territory. It’s no wonder so many bosses and workers are confused – lawyers are too!
Without statutes in place and with regulations changing, it can be hard to provide a definitive answer. The Government has announced the Coronavirus Job Retention Scheme, which means that if you both agree, your employer can put you on temporary leave (furlough).
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This applies when they are unable to operate or have no work for you to do because of Covid-19. If you are furloughed, you will be paid 80 per cent of your wages by the Government, up to a monthly cap of £2,500.
It sounds straightforward, but your own unique circumstances can make things tricky. I have been inundated with questions from people who have been furloughed, had their salary cut or lost their jobs.
Here, I have provided my answers to some of your most common queries.
Q I STARTED a new job shortly before the lock-down. My new company has advised me it cannot pay me the 80 per cent government pay because I didn’t start before February 28. What can I do?
A Annoyingly for you, your new company is almost certainly right. Unless you were on the payroll by February 28 they are not legally bound to extend the furlough scheme to you. There are talks about this being changed and lots of pressure on the Government because there are a lot of people in your position. In the meantime, you are entitled to Universal Credit — apply now.
Q I WAS late getting to work at a food processing plant due to a change in bus timetables caused by the lockdown. My boss said this was a disciplinary offence and fired me. Is this legal?
A This is probably not legal. If you have been employed for two years or more this counts as unfair dismissal. If you took your employer to an employment tribunal you would have a good chance of winning. If you haven’t been employed there for 24 months you would still be entitled to pay for your notice period. It is possible you could bring a claim for breach of contract as your employer has almost certainly failed to uphold their own disciplinary procedures. You may also be entitled to a claim for discrimination. Write to this firm making it clear the country is watching their behaviour — as am I.
Q I AM on furlough but my employer is holding back a week’s wages I earned before I was furloughed, saying I will get them when my employment starts again. Can he do this?
A Your employer cannot do this, unless it was agreed in a contract. You were promised this money and it has absolutely nothing to do with you being furloughed. I have had a number of messages about this unlawful practice and I understand employers are trying to protect cashflow. But if you were promised this money your firm is not entitled to withhold it. It may be that, like many others, you will have to work with your employer if they need that money to stay afloat and protect your job, but make sure they put in writing that the money will be forthcoming in due course. Waiting a while for the money may be better than your company going bust.
Q AM I entitled to get another job – say, in a supermarket – while I am on furlough from my employer?
A I have been inundated with people asking this, but the law is not clear. My view is that unless the contract you have with your current employer specifically states you cannot take another job (and many do), there is no reason why you cannot during this time. There is nothing as it stands in legislation that prevents you from doing this. The government regulations (different from law) are not clear and need clarification. Importantly, disclosure to your current employer is critical. Do not accept another job without giving clear written notice to your current employer that you are taking up other employment while furloughed.
Q MY employer wants me to accept a ten per cent pay cut. I checked my contract and I don’t believe they have the power to do this. Do I have a way of resisting this?
A Your employer cannot unilaterally decide to cut your wages. You have signed a contract and they have promised to pay you. But these are unprecedented times and there is legal provision which may, in certain circumstances, allow employers to sack you and then, if necessary, re-employ you on a reduced salary. Multiple employers have asked staff to take a reduction in order for them to survive. The critical thing is that if you accept such an offer it must have an end date, in writing. You can’t be forced to accept a contract change, including a salary cut. But be warned that if you do not, your employer can put you on furlough, which will only cover 80 per cent of your salary.
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Q I RESIGNED from my job but my new one has fallen through due to the virus. Where can I get help?
A I am afraid you will have to claim Universal Credit. It may be worth writing to your old employer to see if there is work still availble, but your legal remedies are limited. The Citizens Advice Bureau is updating its advice on this all the time.
Q MY EMPLOYER has gone into administration. Can I still be furloughed?
A The law makes clear that administrators, independent professionals responsible for either salvaging a bankrupt company or ensuring creditors are paid, can apply to the government furlourgh scheme to ensure an income for staff. However, the administrator will probably focus on attempting to pay creditors and shareholders. Do not let them do this. Get together with co-employees and write to the administrator insisting you’ll not be forgotten and nor will their behaviour.
Q I’VE HAD to cancel my holiday and my employer needs me to work during the time I had booked off. Usually we are not entitled to carry annual leave into the next year, but if they are requiring me to work, surely I must have the right to do so?
A Good news, the Government has amended regulations so workers can carry over up to four weeks holiday into the next two holiday years. This applies where it has not been possible for you to take some or all of your leave because of the virus. However, it has to be because you were required to work.
Q I BECAME self-employed in February. Am I entitled to government grants?
A It looks like you are not, but this may change. You need to have accounts for 2018/2019 to be entitled to assistance. But this situation is moving, so don’t give up hope.
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Q I’M A zero-hours worker. Am I still entitled to be put on furlough? My employer is closed so I have no shifts but nothing has been mentioned about furloughing.
A The furlough scheme covers zero-hour contract workers so your employer should make an application on your behalf. Get in touch and ask them to explain their policy. It costs them nothing to offer you furlough so I do not understand why they have not.
Q I WORK in a shop and my employer has made no effort to make the environment safe for the workers. In other shops I have seen screens at tills and employees issued with gloves and masks. We have none of that. I don’t feel safe. Am I entitled to stop working without risking my job?
A It is shocking that there are no specific health and safety regulations protecting workers like you which have the full force of law. I do not have a clear answer about whether you are entitled to refuse to go to work if the business is open and offering essential services. However, in due course your business failing to make the environment safe could be grounds for constructive dismissal if you were to make the decision to walk away. I urge you, in the strongest possible terms, to write to your line manager asking them to provide safety equipment, making it clear the environment is unsafe and explaining that you will be considering your options if adequate safety measures are not introduced.
Q I WANT to go on furlough, but my employer has cut my hours by half. How can I make them furlough me so I can get 80 per cent of my pay instead of 50 per cent?
A Your boss can’t just slash your hours by half, that is a straightforward breach of contract. If there is no work for you to do then furlough should be offered to you. Write to your employer at once asking for them to explain why they think this is lawful. I look forward to their answer.
Q I CAN’T work because I have to shield myself due to health reasons. I asked my employer to furlough me and they said they couldn’t because I can’t work, so I am currently on unpaid leave. Is this fair?
A This all depends on your circumstances. If you are able to work from home, and are healthy enough to do so, your employer should offer you this option. If your employer is unable to operate, or there is no work you could do if you did not have to shield yourself, then you should be offered furlough. But if the business is an essential service that has remained open, and you have to attend work in person, the remedy is to apply for statutory sick pay (SSP).
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