COVID-19 – Furlough and Statutory Sick Pay

To be or not to be ‘Furloughed’ and what it means to YOU

Coronavirus Job Retention Scheme has been introduced by the Government.  This is a temporary scheme open to all UK employers that have been placed on furlough as an alternative to making them redundant and will cover (currently) at least three months starting from 1 March 2020. This may change depending on updates by the Government going forwards.

HMRC are creating a portal for Employers to claim for 80% of the usual monthly wage costs including Employer National Insurance contributions and minimum automatic enrolment employer pension contributions on that wage, up to a maximum of £2,500 per month.  However, the portal is not yet live.  The employee is placed on leave and is not permitted to work for the employer.  However, an employee could work for other employers but would need to notify their current employer.  Employers would need to agree FW in a Furlough Agreement which they would need to retain for a period of 5 years and both parties would need to sign this.  The scheme is open to all UK employers that had created and started a PAYE payroll scheme on 28 February 2020 and can be used at any time during this period.

Furlough – The new employment word – What does it mean?

The word furlough means to ‘take a leave of absence’ from service. This allows employees to be temporarily absent from work, they must not carry out any work that makes the firm revenue, but are still paid by the employer.  The following can apply for the scheme:-

  • Businesses and charities
  • recruitment agencies (agency workers paid through PAYE)
  • public authorities

Furloughed employees can be any of the following:-

  • full-time employees
  • part-time employees
  • employees on agency contracts, flexible or zero-hour contracts

If an employee is working for their company or organisation, undertaking reduced hours, or for reduced pay, they will not be eligible under the new Act.  They will be paid directly by their employer 

Can I say NO to being Furloughed?

  • Consent from the employee must obtained. Failure to do so may constitute a breach of contract.
  • Employers should discuss with their staff and make any changes to the employment contract by agreement. equality and discrimination laws will apply when employers are making decisions in relation to the process and in deciding who to offer furlough to
  • Employers are under a duty to write to employees confirming that they have been furloughed.
  • If you were on unpaid leave you cannot be furloughed unless you were placed on unpaid leave after 28 February 2020.
  • If you have more than one job you can actually be furloughed for each job.

Do I have rights when I am Furloughed?

  • Furloughed employees have the same rights as they did prior to being Furloughed. Statutory Sick Pay entitlement, maternity rights, and other parental rights, rights against unfair dismissal and redundancy payments all still apply.

If I am Furloughed do I still get my holiday entitlement?

  • Yes you will! You will still accrue your holidays.

Can I make my employer give me the 20% I have lost?

Your employer is not required to make up the extra 20% of your wage.  This is at the discretion of the employer unless this is a direct breach of contract if the employee is being paid under the minimum wage

What about Statutory Sick Pay?

SSP is going to be payable from day one not day four.  This is in Section 39 of the Coronavirus Act 2020.  Also the first 14 days is going to be reclaimable from the Government.  If you are staying at home to isolate in line with advice from Public Health England then you are entitled to SSP.  We now have Isolation Notes which can be obtained from the NHS111.  You do not need to go to your GP if you are sick on day seven or eight.  You go to 111.nhs.uk/isolationnote, and you can get the isolation note using the online system.

What about Company Sickpay?  Company sick pay means ‘sick’ so unless you are actually sick you don’t get company sick pay.  Self isolation is not enough because you’re not actually sick.    Many employers are going to want to pay full sick pay but are not going to be able to if someone is self isolating and they will want to know whether they need to.    It may be that as this has not been tested in Court it cannot be right that sick in an occupational sick pay scheme should be construed to reflect entitlement to SSP.  So someone self isolating is not strictly entitled to SSP.

If you are still unsure about your rights or have more questions, please contact us to speak to a member of our Employment Team 

0114 3583134 or email NikkiSharpe@bestsolicitorsonline.co.uk

 

 

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