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Coronavirus furlough leave/job retention scheme 2020 – 2021

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Furlough leave is basically being laid off work temporarily. It was used by the government to enable employers whose businesses were severely affected by the coronavirus pandemic to retain their employees.  The furlough scheme was officially called the Coronavirus Job Retention Scheme and ran from March 2020 to September 2021.  

Although the scheme has officially ended, we are leaving this short guide and FAQs on our website for a while longer, so that individuals may refer to it if they wish.

Roadmap of the furlough scheme

The scheme began in March 2020 and closed on 30 September 2021.  It went through the following major variations:

1st March 2020 to 31st August 2020: The government contributed 80% of a furloughed employee’s salary up to a monthly cap of £2,500. 

September 2020: The government contribution reduced from 80% to 70%, with a monthly cap of £2,190.  The employer contributed the additional 10% (plus top up to 100% if that is what was agreed with you).

October 2020: The government contribution tapered down to 60%, with a maximum of £1,875 per month.  The employer’s contribution was now an additional 20% (plus any agreed top up as above).

1 November 2020: The scheme was extended until the end of April 2021 and once again contributed 80% to a furloughed employee’s salary, with a £2,500 monthly cap.

3 March 2021: The government decided to extend the scheme further, until 30 September 2021, continuing with an 80% contribution and £2,500 cap, but with the employer making a small percentage contribution.

Furlough scheme pay

  • Under the final variant of the scheme (March 2021),  80% of an employee’s salary continued to be paid for the hours employees couldn’t work during the pandemic, up to a maximum of £2,500 per month.

 

  • Of this 80%, the government expected employers to contribute 10% in July 2021 and 20% in August and September 2021, as the economy improved and coronavirus infection levels eased off.

 

  • For periods up to 30 April 2021,  you had to have been on your employer’s payroll on or before 30th October 2020 in order to be furloughed. Your employer also had to have made a Pay As You Earn (PAYEReal Time Information (RTI) submission between 20 March 2020 and 30 October 2020, notifying a payment of earnings for you.

 

  • In the extended furlough scheme – from 1 May 2021 – you had to have been on your employer’s payroll on or before 2 March 2021. In addition, your employer must have made a PAYE submission for you between 20 March 2020 and 2 March 2021.

 

  • In order to claim furlough pay for you on or after 1 May 2021, an employer didn’t also need to have claimed for you before 2 March 2021.

Eligibility for furlough scheme pay

The furlough scheme covered any employee, and not just employees who would otherwise have been made redundant for lack of work.

This meant that it could be used where the employee was self-isolating or shielding due to a fear of contracting or spreading coronavirus.

 

 

 

FAQs about the furlough scheme

Could my employer have refused to furlough me because of my workplace health and safety issues?

Some employers refused to put their employees on the scheme if they were self-isolating because of fears that the workplace was unsafe to attend due to coronavirus. 

If that was you, and you suffered a pay cut, got no pay or even were dismissed as a result, then you may have a claim against your employer for breach of contract. unfair dismissal,  constructive dismissal or other unfair conduct. 

Also see our article on unfair dismissal, pay cuts and bullying resulting from coronavirus safety issues at work

Remember that there are strict time deadlines of three months (less one day) within which you need to submit any claim you may have against your employer. (See our article on time limits for making tribunal claims for further information.)

Did I have to agree to be furloughed?

Your employer was legally obliged to seek your agreement in advance of putting you on the furlough scheme.  They couldn’t just tell you that you were being furloughed or force you to accept it.  However, if you refused to agree, then your employer could make you redundant (see below).

Similarly, if you wouldn’t agree to be paid anything less than 100% of your wage or salary, your employer could either top up your pay to 100%, or else again, make you redundant.

When furloughed, should I have received my full salary/wage or just a percentage?

During the final extension of the scheme (from March 2021), the government paid your employer 80% of your wage (capped at £2,500 per month for the hours you were on furlough). 

But your employer was still legally obliged to top up the 80% and to pay you 100% of your wage unless they had your agreement to pay only 80%. You had the right not to accept 80% and to insist on 100%. 

If your employer said they couldn’t afford to pay you 100%, and you didn’t agree to wait until they could afford to pay you in full, then they could have made you redundant and paid you a redundancy package.

If you had no contractual redundancy package in your contract of employment, then you were entitled to statutory redundancy pay (maximum of £16,320 or £544 per week x 30 weeks  – rates apply from April 2021).

What if the % government pay took me below the national minimum wage?

Your employer did not have to top you up to national minimum wage if you were not actually working.

How did the furlough scheme work if I had an irregular wage?

If your pay varied, your employer could claim for the higher of (i) the same month’s earning from the previous year (eg earnings from March 2019); or (ii) average monthly earnings in the 2019-20 tax year.

If I was self-isolating or on sick pay, could I be furloughed?

The official guidance on this was that an employer “could not claim for employees while they were getting Statutory Sick Pay, but they could be furloughed and claimed for once they were no longer receiving Statutory Sick Pay.” So once you stopped receiving SSP, you could be furloughed (providing you met the payroll and PAYE conditions outlined at the beginning of this article).

I was shielding, could I have been furloughed?

Shielding was ‘a measure to protect people who were clinically extremely vulnerable by minimising all interactions between them and others’. And yes,  you could be placed on furlough when shielding whilst the furlough scheme was still in operation.  The government ended the shielding programme in England on 28th September 2021.   

Could old/pregnant/vulnerable employees be placed on furlough, although no one else was?

Yes.

Did the government % payments cover commission and bonuses?

Sadly the scheme did not cover fees, bonuses and commission.  See also the next question about NI and pension payments.

Did the government pay employers’ national insurance and pension contributions?

From 1 November 2020 to 30 September 2021, employers paid employer National Insurance Contributions (NICs) and pension contributions for the hours the employee did not work.

Could I do any paid work on the furlough scheme?

Up to 30th June 2020, you could not be doing any work whatsoever for your employer. 

From 1st July 2020, ‘flexible furlough’ was introduced alongside full-time furlough, and this continued until the end of the schemes.

Under the flexible furlough arrangement, you could do part-time work for your employer, and they should have paid you 100% pro-rata of your wage/salary for that part-time work.

The furlough money your employer received for you from the government was only for the hours that you didn’t work when compared with the hours you would normally have worked during that time.

If you were fully furloughed, you couldn’t do any work for your employer during the time you were recorded as being on furlough.

Could my employer choose who to furlough?

Since the inception of the scheme, your employer had the discretion on who to furlough – they could use any rational system to make their selection. For example, it could have been based on an employee’s length of service.

But the Equality Act 2010 still applied, so selection couldn’t be done in a discriminatory way. Your employer could prioritise old and vulnerable people, even though this might have been seen as discrimination against young people because age discrimination could (and still can) be ‘justified’ in some cases.

Could my employer rotate people on furlough leave?

Yes, they could, but in the last phase of the scheme, there was no longer any minimum number of weeks or days that you had to be on furlough. (It was 3 weeks initially.) Having said that, employers making claims through the government portal usually had to cover periods of at least 7 days (excluding the first or last few days in a month).

Could my employer require me to take holiday when on furlough?

Yes, so long as they gave you twice as much notice as the length of the holiday. For example, if they wanted you to take 1 week off, they had to give you 2 weeks’ notice.

 

Did my holiday continue to accrue during furlough?

Yes, as you were still employed and you had a right to the statutory minimum of 5.6 weeks per year.

What if I no longer wanted to be on the furlough scheme, but to take redundancy instead?

You could have applied for redundancy pay if you had worked for your employer for 2 years or more. The 2 year qualification period included the time you were furloughed. (See gov.uk article on furlough and redundancy for more.)

Could I have been made redundant when on furlough?

Yes you could, providing your employer followed proper procedures for redundancy – see our redundancy guide for more about this.  You might like to try our Virtual Lawyer letter writer service to create a letter to your employer if you were/are facing redundancy or have recently been made redundant.  

Also note that there is now legislation in place which required your employer to calculate your redundancy pay based on your pre-furlough wages or salary, rather than on your reduced furlough pay.

Did the furlough scheme apply if I was on a zero-hours contract?

Within the payroll and PAYE dates outlined earlier, the scheme should have covered most – but not necessarily all – people on zero-hours contracts. 

Could I have asked for a pay rise to top up furlough pay, so I still got the same money as before?

You could have asked, but your employer was under absolutely no obligation to give you such a pay rise.

Could I have been disciplined or carried on my grievance whilst on furlough?

Yes. 

Your next steps

If you are or have recently been having problems at work with such issues as absence, pay, dismissal or other matters arising from the covid-19 pandemic, Monaco Solicitors can help.

  • Our other coronavirus-related guides are listed below and will give you a better understanding of your employment rights and practical guidance.
  • Our free Virtual Lawyer letter writer is really easy to use and creates a legal letter addressed to your employer about a variety of employment problems, including those related to coronavirus.
  • If you would like legal advice and/or would like to find out what options exist for having a lawyer undertaking some or all of your case (including on a no win no fee basis), please contact us via this link, by phone on 020 7717 5259 or by email:  [email protected]

 

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