The extension of the Government’s Coronavirus Job Retention Scheme (CJRS) until the end of October 2020 has come as welcome news for the seven and a half million workers currently enrolled on the scheme. 

While some employees in some sectors have now been encouraged to go to back to work if possible, the current situation facing employers is unprecedented as they adjust to the ever-evolving situation.

Employment lawyer Tessa Robinson from law firm Furley Page explained: “Following the Government’s decision to extend the CJRS, Furley Page is supporting numerous organisations across Kent who want clarification on their rights and responsibilities towards furloughed staff.”

The most common questions asked by organisations preparing to re-open for business include:

What changes to the furlough leave scheme have been announced?

The terms of the scheme will remain the same as they currently are until the end of July 2020 – employees who are furloughed cannot carry out any work for their employer, and will receive up to 80% of their salary, subject to the cap of £2,500, from the CJRS. 

From 1 August 2020, employers will be obliged to share the cost of an individual on furlough leave with the government, but the amount an individual is entitled to receive will not change. The scheme will also be more flexible in order to accommodate individuals returning to work on an initial part-time basis whilst businesses slowly re-open and re-build.

How do I notify our staff that furlough leave will be ending and they are required back at work?

Some furlough agreements have stipulated how employees will be informed and how much notice will be given. If the agreement does not stipulate how an employee will be notified that they must return to work, businesses should give as much notice as possible, in writing. 

What steps should be taken to ensure employee safety upon their return?

Organisations should not ask staff to return before you have been able to follow the government’s advice in ensuring the workplace is safe to work and carried out a risk assessment. Specific workplace guidance has been issued for different sectors which should be followed by employers. Steps that may need to be taken include staggering start times, changing shift patterns, social distancing and deep cleaning of the premises.

Can I make staff redundant who are on furlough leave?

Furlough is “subject to all existing employment law”, which means that organisations can still make staff redundant provided they follow the usual procedures and consult with staff as required. Sufficient time should be allocated to ensure genuine consultation takes place. 

Tessa continued: “Given that fully subsidised furlough leave is due to end at the end of July, organisations are starting to think about redundancy consultation procedures now so that they can limit any financial impact. Organisations will need to be able to establish why a redundancy situation has arisen now, and why continued furlough leave is not an option for the company.”

Can I pay statutory notice pay at 80% and claim it under the CJRS?

Employees cannot contract out of statutory notice, so if notice is served whilst an employee is on furlough leave and they are only entitled to statutory notice, an employer must top up the furlough leave pay to 100%. 

Tessa continued: “If an employee is entitled to more than statutory notice, the wording on the furlough leave agreement will need to be checked to ensure that the change to their terms and conditions is sufficient to encompass notice pay. It may be that an employer also needs to pay notice pay at 100% in these circumstances and the Government is expected to provide further clarifications at the end of May, which may explain whether notice pay can be claimed through the CJRS.”

When must businesses start the consultation process for large scale redundancies?

Tessa explained: “Businesses will need to follow the rules on collective consultation: if proposing to dismiss 20-99 employees on the grounds of redundancy, a minimum of 30 days’ consultation is required, and if 100 + job losses are expected, the minimum period of consultation rises to 45 days before the first dismissal can take effect.

“The rules on collective consultation are very strict, and the penalties for failing to comply are high, so it is important that organisations get expert legal advice on their responsibilities before proceeding.”

Businesses that require advice about the furlough leave scheme, steps they may need to take prior to staff returning to work, any potential redundancies, or anything else affecting their workforce, can contact a member of the Furley Page Employment Team on 01227 763939.

You can also follow the firm on Twitter @furleypage and on LinkedIn.

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